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LIFE  AND  SERVICES 

I 


> 

OF 

.1 


EDWARD     LIVINGSTON      I 


ADDRESS  OF 

CARLETON   HUNT, 

MAY  9,  1903. 

On  the  Occasion  of  the  Annual  Meeting  of  the  Louis- 
iana Bar  A^ociation,   in  the  Chamber  of  the 
Supi^'me^  Court  of  the  State  of 
Louisiana,  New  Orleans. 


'  .NEAV  ORLEANS,  LA.: 

J.  G.  Hauser,  "The  Legal  Printer,"  402  Camp  Street. 

1903. 


H3 


I 


J/eiv  Orfeans,   J/a/^  30th,   7903. 


-•/fty  dear  K^/r: 


kJ   t/iinli    a     reuision     ceslraS/e    of 


second  paraqrap/i,     pa(fe    37,     o7     t7ie     address, 
on    ^c7ivard    l^iinngston,    w7iic7i    U   7iac7  recent/^ 


tTie     7ionor    to     senc7    lyo  i. 

^  reauest,  t7ie retire,  (if  lyoii  7iave  Tiept 
tTiLS  address)  t7iat  lyoi  ivlll  substitute  in  line 
one  {7)  for  t7ie  word  ending"  t7ie  folloiving — 
7872=20,    made   q/orious   Sty — and  if  lyou  ivitl  in= 


sert    line    nine     (5^)    saaie    para^rapTi — t7ie     line 


before    tTie    last — after    tAe    word  secession,    tTie 


folloivina    words — as    imputed   to    tTie    yJiartford 


C  on  If  en  tion . 


Veru  truliy  an*)  respectfully  yours. 


LIFE  AND  SERVICES 


OF 


EDWARD   LIVINGSTON. 


Address  of  Carleton  Hunt. 


Mr.  President,  Ladies  and  Gentlemen: 

A  great  profession  advances  itself  when  it  honors  its  illustrious 
men.  It  is  not  easy  to  think  of  a  more  appropriate  time  than 
the  present  annual  meeting-  of  the  Bar,  to  place  before  the  As- 
sociation a  narrative  of  the  life  and  services  of  Edward  Living- 
ston, or  a  more  suitable  place  for  doing  so,  than  this  historic 
chamber  of  the  Supreme  Court  of  the  State  of  Louisiana,  where, 
in  the  gallery  about  us,  his  bust  (taken  from  the  original  work 
of  art  in  marble  by  Ball  Hughes,  which  is  at  INIontgomery  Place,) 
now  holds  a  place  of  honor.  The  influence  of  Mr.  Livingston  in 
laying  the  foundations  of  this  State,  and  of  its  jurisprudence, 
when  he  was  facile  princeps  at  the  Bar  of  New  Orleans,  was  pow- 
erful. The  very  recent  celebration  in  this  court  room  of  the  one 
hundredth  anniversary  of  the  Cession  of  Louisiana  by  France  to 
the  United  States — a  great  public  transaction  which,  more  than 
that  of  anybody  else,  was  the  work  of  Robert  R.  Livingston, 
l)rother  of  Edward  Livingston ;  the  close  neighborhood  of  this 
ancient  building,  once  the  seat  of  the  Spanish  Cabildo,  to  Jack- 
son Square,  formerly  the  Place  d'Armes,  where  Mr.  Livingston, 
standing  side  by  side  with  General  Jackson,  addressed  in  tones 
that  w^ere  never  forgotten  by  those  who  heard  him,  the  serried 
ranks  of  the  American  soldiery,  and  rallied  them  in  the  victori- 
ous campaign  of  1814-15  to  the  support  of  the  flag  of  their 
country  at  the  battle  of  New  Orleans,  are  suggestive  of  asso- 
ciations wdth  his  name.  Although  sixty  years  have  elapsed 
since  the  close  of  his  career  of  usefulness  and  honor  in  public 
life,  his  history  as  it  lies  before  us,  is  full  of  interest  and  instruc- 
tion, and  proves  him  to  have  been,  not  only  a  jurist,  the  ornament 
of  the  entire  American  Bar,  but  also  an  enlightened  statesman, 
devoted  to  the  cause  of  our  common  country,  and  a  philanthropist 


361039 


far  in  advance  of  the  time  in  whieh  ho  lived,  —  in  point  of  fact,  the 
Champion  of  Law  Reform  in  the  United  States. 

Edward  Livingston  was  horn  at  CU^rmont,  Colnmhia  County, 
Ts'ow  York.  May  20.  A.  1).  17(54.  He  was  descended  from  an 
ancient  and  nohle  family  of  lowland  Scotch.  Sir  Alexander  Liv- 
in{.rstt)ne,  of  Calendar  (A.  D.  1487),  was  one  of  the  two  joint 
rejrents  during  the  minority  of  Jamc"!  IL  of  Scotland.  The  magic 
pen  of  Sir  Walter  Scott  has  surrounded  with  the  halo  of  Romance 
the  name  of  his  daujrhter.  Mary  Livin<rstonc.  who  was  one  of  the 
"four  Marys,"  maids  of  honor  to  the  unfortunate  ^lary,  Queen 
of  Scots,  brou^'lit  up  to  be  her  companions.  ^lary  Living- 
stone shared  the  impri.sonment  of  Queen  Mary  in  the  Castle  of 
Lochleven,  and,  as  I  find,  the  perils  of  the  attempted  rescue 
of  the  royal  captive.  Tiie  earldoms  of  Linlithgow,  and  Calendar 
and  the  title  of  Viscount  of  Kilsyth  were  held  at  different  times 
by  the  Livingstons. 

The  grandson  of  the  fifth  Lord  Livingston,  the  Reverend  John 
Livingston,  was  a  celebrated  preacher,  lie  was  one  of  two  com- 
mi.ssioners  to  negotiate  at  Breda,  the  accession  of  Charles  IL  to 
the  throne  of  Scotland.  His  son,  founder  of  the  family  of  the 
Livingstons  of  New  Yoru,  was  born  in  Scotland.  A.  D.  1654.  He 
was  a  bold  and  ambitious  iniiii.  lb-  married  Alida.  widow  of 
Nicholas  Van  Rensselaer,  born  Schuyler,  and  A.  1).  1(186,  became 
by  Icttccs  i>at<'iit  duly  confirmt'd  first  Lord  of  the  Manor  of  Liv- 
ingston. 

The  first  Lord  divided  his  ample  domain  of  one  hundred  and 
si.xty  thousand  acres  at  his  d(>ath.  The  upjier  manor  he  be- 
queathed to  his  eldest  son.  Philip  Livingston.  He  bestowed  the 
lower  manor  of  Clermont  upon  his  second  son  named  Robert. 
This  second  son  was  a  man  of  learning  and  of  high  character,  and 
an  ardent  patriol.  who  transmitted  to  tliose  who  came  after  him 
his  love  of  American  independence.  lie  died  A.  1).  177;").  He 
was  fatlier  of  Robert  R.  Livingston,  .judge  of  tlie  Supreme  Court 
of  the  Colony  uf  New  ^'oik.  who  also  died  A.  D.  1775.  As  the 
name  of  Robert  was  handi'd  down  fiimi  fatlier  to  son.  the  latter 
wrote  it  Robert  H..  which  stood  for  K(»bert  Robert.  The  signifi- 
cancy,  or  real  meaning,  belonging  to  the  repetition  of  the  Chri.s- 
tian  name  is  Robert  the  son  of  Robert.     Judge  Livingston  also 


adhered  to  the  patriot  cause.  He  was  admitted  to  a  seat  in  the 
Stamp  Act  Congress  of  1765.  He  was  author  of  the  address  to 
the  King  of  England  to  hold  inviolable  the  rights  of  the  colonies, 
and  to  preserve  sacred  the  right  of  trial  by  jury.  Judge  Living- 
ston married  Margaret,  daughter  of  Colonel  Henry  Beekman. 
Mrs.  Livingston,  when  offered  protection  for  the  family  mansion 
at  Clermont  by  the  British,  declined  it  rather  than  accept  any 
advantage  over  her  neighbors  and  countrymen.  The  house  was 
set  fire  to  and  burned  in  consequence.  Mrs.  Livingston  was 
revered  by  all  who  knew  her,  for  her  virtues  and  strength  of 
character.  The  family,  issue  of  this  marriage,  endeared  them- 
selves to  the  people  by  their  devotion  to  the  patriot  cause.  Robert 
R.,  and  Edward,  became  illustrious  men.  Henry  Beekman  Liv- 
ingston was  a  Colonel  in  the  Revolutionary  Army.  Congress 
voted  him  a  sword  for  gallant  services.  He  w£  a  dear  friend  of 
Lafayette.  Janet,  eldest  daughter,  married  Richard  Montgomery, 
Gertrude  became  the  wife  of  General  Morgan  Lewis.  Alida  mar- 
ried John  Armstrong,  Secretary  of  War,  Minister  to  France, 
Senator  of  the  United  States. 

The  early  life  of  Edward  Livingston,  his  career  at  the  Bar  of 
the  City  of  New  York,  and  his  first  Congressional  service  of  six 
years  as  Representative  from  the  State  of  New  York,  were  passed 
in  the  time  of  American  Constitutional  formation  and  early 
growth.  Burke  declared  that  by  the  battery  of  questions  which 
the  colonists  had  raised,  they  had  shaken  the  solid  foundations  of 
the  British  Empire.  Lord  Chatham  said  to  the  House  of  Lords, 
that  when  they  looked  at  the  papers  transmitted  from  America, 
and  when  they  considered  their  decency  and  fairness,  they  could 
not  but  respect  the  cause,  and  wish  to  make  it  their  own. 

At  the  age  of  nine,  Edward  Livingston  lost  (A.  D.  1775)  both 
his  father,  Judge  Livingston,  and  his  brother-in-law,  Richard 
Montgomery.  He  was  witness  to  the  parting  of  the  latter  with  his 
w^ife.  The  scene  sank  deep  into  his  heart  and  agitated  it  strangely. 
The  fall  of  Montgomery  before  Quebec,  the  same  year,  was  the 
costly  offering  of  Janet  Livingston,  and  of  Yier  family  upon  the 
altar  of  their  country,  and  identified  them  with  the  Revolution, 
as  nothing  else  could  have  done. 

A.  D.  1779,  Edward  Livingston  became  a  member  of  the  Junior 
Class,  Nassau  Hall,  Princeton.    The  college  resumed  its  courses  of 


instruction  that  year  after  long  interrui)tiou.  He  graduated  at 
seventeen.  Priiieeton  witnessed  some  of  the  most  stirring  scenes 
of  the  war.  Washington,  before  adjournment  in  177(3,  had  been 
invested  by  Congress  with  the  powers  of  a  Dictator.  There 
was  no  tiarker  time  in  the  course  of  the  great  struggle  than 
when  he  retreated  across  the  Jerseys.  Hut  In-  tui-ned  at  last 
upon  his  i)ur^uers  and  earned  tlic  appellation  of  the  American 
Fabius.  He  re-crossed  the  freezing  Delaware  and  December  26, 
1776,  fought  the  battle  of  Trenton,  lie  rode  in  the  advance  with 
a  battery  of  artillery.  He  remained  with  it  when  it  unlimbered. 
He  exposed  himself  freely  to  danger,  and,  as  his  habit  was  when 
he  was  aroused  and  in  action,  refused  all  appeals  that  he  shoidd 
fall  back.  He  moved  forward  with  his  column  to  the  head  of 
King  street,  and  himself  directed  the  fire  of  the  guns.  The  battle 
near  Princeton  took  place  Januarj'  3.  1777.  fleeting  near  Clark's 
house,  as  he  galloped  to  the  front.  ]\Iercer's  troops  in  full  retreat, 
Washington  rallied  their  broken  ranks.  Gallantly  mounted  on  a 
white  horse,  a  conspicuous  mark  for  the  enemy,  he  waved  his  hat 
on  iiigh.  He  called  on  his  men  to  follow,  and  led  them,  taught  by 
his  example,  through  the  storm  of  battle  to  victory !  He  pushed 
on  to  Princeton.  A  party  of  British  had  taken  refuge  in  the 
college,  but  after  receiving  a  few  discharges  from  the  American 
field  pieces  they  surrendered.  Dr.  Withersj)oon,  the  President,  re- 
turned to  Princeton  in  1779  to  repair  the  battered  college  build- 
ings, and  by  his  presence  and  course  in  public  life  as  a  devoted  sup- 
porter of  the  Revolution,  to  eonnnunicate  his  own  enthusiasm  to 
the  students  under  his  charge.*  The  fortitude,  the  wisdom,  the 
consummate  generalship  of  Wa-hington.and  his  lion-hearted  cour- 
age having  had  full  opportunity  for  display,  had  come  to  act  as  an 
inspiration  on  his  countrymen,  and  indicated  already  that  he  was 
to  be  celebrated  as  the  noblest  figure  that  ever  stood  in  the  fore- 
front of  a  nations  historj'.  The  scenes  of  his  exploits  were  elo- 
qucMit  t«'stimony  to  the  young  who  liv»'d  in  daily  contact  with 
them.  Edward  Living'^ton  was  repeatedly  admitted  to  his  pres- 
ence and  was  kindly  noticed  by  him. 

Lafayette  was  vtiy  tjiily  in  sliowing  his  fondness  for  young 
Edward  Ijivingston.  jind  ctnislantly  dn-w  him  lo  his  side  in  inti- 
mate and  congenial  eompanionshij).    The  latter  had  always  before 


Irving 'a  Wasliitigton. 


him  the  instruction  and  fraternal  counsel  of  his  brother  Robert  R. 
Livingston.  The  last  mentioned  reached  the  undying  honor  of 
membership  upon  the  committee  which  reported  the  Declaration 
of  Independence.  He  was  first  Secretary  of  State  under  the  Rev- 
olutionary Government  of  the  United  States,  and  had  frequent 
access  to  Washington.  It  was  the  fortune  of  Robert  R.  Living- 
ston afterwards,  as  Chancellor  of  the  State  of  New  York,  to 
administer  the  oath  of  office  to  Washington  on  his  inauguration 
as  first  President  of  the  United  States.  It  fell  to  him,  Monroe 
acting  towards  the  close  as  his  associate,  to  conduct  to  successful 
issue  with  the  French  Government  the  negotiations  for  the  cession 
of  Louisiana  to  the  United  States.  To  Chancellor  Livingston  the 
great  distinction  also  belongs,  of  having  been  Coadjutor  with 
Fulton  in  the  enterprise  of  navigation  by  steam.  Who  can 
measure  the  influence  of  such  a  character,  upon  that  of  a  younger 
and  of  a  very  loving  brother  like  Edward  Livingston? 

After  graduating  at  Princeton,  Edward  Livingston  began  to 
study  law  at  Albany,  in  the  office  of  John  Lansing  who  was  after- 
wards Chancellor.  Kent,  Hamilton  and  Burr  were  among  his 
associates  of  this  time.  There  is  no  tie  more  lasting  than  that 
between  fellow  students  Mho  are  in  earnest  about  improving. 
Kent,  in  particular,  formed  a  friendship  for  Livingston  which 
followed  him  everywhere,  and  found  expression  in  sincere  tributes 
to  his  abilities.  The  latter  was  fond  of  the  Latin  tongue 
and  cultivated  familiarity  with  it.  He  made  himself  acquainted 
with  the  Institutes  and  Pandects  of  Justinian,  and  thus  laid 
broad  and  deep  the  foundations  of  his  subsequent  distinction  as 
a  great  civilian.  In  1783  he  went  to  reside  in  the  City  of  New 
York,  where  he  continued  his  legal  studies,  and,  although  he 
mixed  freely  in  the  best  society,  as  was  quite  natural  in  a  young 
man  of  his  family  position,  at  the  same  time  engaged  actively  in 
the  practice  of  his  profession,  and  readily  reached  the  front  rank 
at  the  Bar  when  the  contest  for  leadership  was  eager  in  the  con- 
spicuous field  he  had  selected,  and  was  carried  on  by  an  array  of 
very  able  rivals.  He  was  married  April  10,  1788,  to  Mary, 
daughter  of  Charles  ]\fcEvers  of  New  York  City.  Three  children 
were  the  issue  of  this  marriage.  Charles  Edward,  who  died  in 
childhood,  Julia,  whose  afflicting  death  in  New  York  while  her 


lather  was  on  his  way  from  New  Orleans  to  visit  her,  hiid  him 
prostrate,  and  Lewis  Livin<;ston,  who  realizinjr  a  most  preeocions 
youth,  died  in  the  tiower  of  early  manhood,  blessed  in  his  father's 
love  and  honored  by  his  friendship. 

In  December,  17!>4,  Mr.  Liviny:ston  was  elected  to  the  Fourth 
Concrress  from  the  City  of  New  York.  He  was  re-elected  in  17!<u 
and  in  1798.  He  served  iii  llic  House  of  Representatives  with 
Fisher  Ames,  Theodore  Sedgwick,  William  B.  Giles,  James  Madi- 
son and  Andrew  Jack.son.  Between  Jackson  and  himself  there  fol- 
lowed an  unl)roken  friendship  of  numy  years.  He  entered  public 
life  as  a  member  of  the  Republican  party  of  the  day.  He  followed, 
althoufrh  never  blindly,  on  the  pathway  where  the  victorious  ban- 
ner of  Mr.  JelT'er.son  was  so  often  in  the  lead.  On  taking  his  seat 
as  a  Representative  he  promptly  avowed  the  opinion  that  the 
cabinet  officers  of  Washington  were  not  entitled  to  the  same 
measure  of  support  and  of  praise  with  the  President.  When  the 
House,  according  to  the  custom,  was  to  make  its  answer  to  the 
President's  speech  at  the  opening  of  Congress,  Mr.  Livin.'zston  was 
in  favor  of  qualifying  the  address  in  reply,  because  it  indulged, 
as  he  thought,  in  commendation  which  did  not  distinguish  suffi- 
ciently between  the  President  and  his  advisers.  This  appears  to 
have  happened  twice.  On  the  second  occasion,  Edward  Living- 
ston and  Andrew  Jackson  both  voted  against  the  address  in  the 
form  in  which  it  was  finally  adopted. 

Ver\'  shortly  after  he  first  appeared  in  the  House,  Mr.  Living- 
ston introduced  a  resolution  calling  for  the  instructions  of  Min- 
ister Jay  in  negotiating  the  treaty  of  17i»4  with  the  Knig  of 
Great  Britain,  together  with  the  correspondence  and  other  docu- 
ments relating  to  it,  and  soon  after  the  mover  amended  the  resolu- 
tion so  as  to  have  it  read  "excepting  such  of  the  papers  as  any 
existing  negotiation  may  render  it  improper  to  disclose."  The 
occasion  for  offering  these  re.solutions  was  the  call  made  on  the 
House  to  appropriate  the  sum  of  $!)0.000  required  to  carry  the 
treaty  into  effect.  Marshall  says,  that  the  debate  .soon  glided  into 
an  animated  vehement  and  argumentative  discussion  in  which  all 
the  passions  of  parly  became  involved,  and  that  it  was  ontin- 
ued  until  March  24,  1795,  when  Mr.  Livingston's  resolution  was 
adopted  by  a  vote  of  sixty-two  to  thirty-seven. 


After  due  consideration  the  President  determined  to  decline  the 
request  of  the  House.  According  to  his  memorable  message,  to 
admit  the  demand  would  have  been  to  establish  a  dangerous  pre- 
cedent. The  necessit}^  for  caution  and  secrecy  was  a  cogent 
reason  for  vesting  the  power  to  make  treaties  in  the  President  by 
and  with  the  advice  and  consent  of  two-thirds  of  the  senators 
present,  and  every  treaty  so  made  becomes  the  supreme  law  of 
the  land.  The  best  reason,  according  to  the  message  of  the 
President,  existed  for  believing  that  this  construction  agrees  with 
the  opinions  of  the  framers  of  the  Constitution,  and  if  it  were 
necessary  to  add  to  them,  reference  to  the  journals  of  the  con- 
vention would  show  that  a  proposition  was  made  'that  no  treaty 
should  be  binding  on  the  United  States  which  was  not  ratified  by 
a  law,'  and  that  the  proposition  was  explicitly  rejected.  After  a 
reference  of  the  message  to  a  committee,  on  motion  of  Mr.  Blount, 
of  North  Carolina,  it  was  resolved  by  the  House,  57  to  35,  that 
whenever  treaties  are  involved  on  subjects  committed  by  the  Con- 
stitution to  Congress,  the  House  has  a  right  to  deliberate  on  the 
expediency  of  carrying  them  into  effect,  without  deciding  what 
degree  of  obligation  the  treaty  possesses  on  the  Nation,  so  far  as 
respects  these  points,  previous  to  such  deliberation. 

Washington  declared,  that  he  had  never  seen  a  crisis  so  preg- 
nant with  interesting  events  as  that  which  took  place  on  the  occa- 
sion of  the  public  announcement  of  the  treaty  of  1794  of  Jay. 
He  had,  while  ]\Iinister  to  Spain,  been  willing  to  suspend  the 
claim  of  the  United  States  to  the  free  navigation  of  the  Missis- 
sippi. No  progress  had  been  made  down  to  the  treaty  of  1794 
with  Great  Britain,  in  settling  the  vexed  questions  in  dispute 
with  that  power.  The  text  of  the  treaty  gave  rise  to  insupeiable 
objections  where  it  prohibited  the  productions  of  Xhe  British 
"West  Indies  from  being  carried  in  vessels  of  the  United  States  to 
Europe;  in  other  words  forbid  exportation  from  the  United 
States  of  articles  which  were  the  principal  productions  of  the 
islands  in  question.  Among  these  was  cotton,  which  was  becom- 
ing one  of  the  principal  staples  of  the  Southern  States.  To 
further  complicate  the  situation  an  immense  party  in  the  country 
rushed  impetuously  to  the  condemnation  of  the  treaty.* 


Marshall 's  Washington. 


In  the  judcTTnent  of  Washington,  who  remained  undismayed  in 
the  midst  of  the  storm  which  raged  around  him,  the  advantages 
of  the  treaty  overhahmeed  its  disadvantages,  however  great.  It 
was  ultimately  ratified,  but  on  eomlition  of  suspending  that  part 
relating  to  interoour>e  with  the  West  Indies.  A  strong  memorial 
accompanied  the  ratification  against  the  order  enacted  of  8th 
of  June,  17f)3,  of  Great  Britain  for  the  seizure  of  provisions  going 
to  French  ports.  Great  Britain  acfpiiesced,  the  order  was 
revoked,  and  the  ratifications  of  the  treaty  were  exchanged. 

Mr.  Livingston,  in  February,  17J)6,  introduced  and  finally 
secured  the  passage  of  the  Act  of  May  28,  1790,  for  the  protection 
of  American  seamen,  who  had  been  impressed  into  the  service  of 
foreign  powers,  but  especially  into  that  of  Great  Britain.  He 
earned  national  reputation  from  his  opposition  to  the  Alien  and 
Sedition  Laws.  The  Alien  Act  of  June  25,  1798,  gave  the  Presi- 
dent i)ower  to  order  all  such  aliens  as  he  deemed  dangerous  or  had 
reasonable  grounds  to  suspect  of  treasonable  intentions  to  leave 
the  United  States.  The  second  Alien  Act  of  July  6,  authorized  the 
President  on  the  breaking  out  of  war,  to  enforce  the  apprehension, 
restraint  and  removal  of  alien  enemies.  The  courts  were  empow- 
ered to  enforce  such  removal  or  exact  security  for  good  conduct. 
The  Sedition  Act  of  July  14,  179S.  made  it  a  high  misdemeanor 
to  combine  to  oppose  measures  of  the  United  States  or  to  traduce 
or  defame  the  Legislature  or  the  President  by  declarations  tend- 
ing to  criminate  the  motives  of  either. 

Mr.  Ijivingston  uidiesitatingly  i)ronounced  these  Acts  uncon- 
stitutional. He  declared  that  the  people  ought  not  to  siibiuit  to 
them.  They  would  deserve  the  chains  which  the«e  measures  were 
forging  for  them,  if  they  did  not  resist.  One  of  the  first  re-^ults 
of  such  laws,  as  lie  insisted,  would  be  disaflTcvtion  among  the 
States,  and  opposition  among  the  people  to  the  government, 
tinnults,  violations,  and  a  recurrence  to  first  revolutionary  prin- 
ciples. If  the  laws  in  ipiestion  were  submitted  to.  the  conse- 
quences would  be  worse.  After  sueh  manifest  violation  of  the 
principles  of  our  Constitution  the  form  woidd  not  long  be  .sacred; 
presently  every  vestige  of  it  would  be  lost  and  swallowed  up  in  the 
gulf  of  despotism.  The  syst«'m  of  espionage  thus  established,  the 
country  would  swarm  with  informers,  s])ies,  delators— the  com- 


panion  whom  you  must  trust,  the  friend  in  whom  you  must  eon- 
fide,  the  domestic  who  waits  in  your  chamber,  were  all  tempted  to 
betray  your  imprudence  and  guardless  folly,  to  misrepresent  your 
words,  to  convey  them,  distorted  by  calumny,  to  the  tribunal 
where,  as  he  said.  Jealousy  would  preside,  where  Fear  would 
officiate  as  accuser,  and  Avhere  Suspicion  would  be  the  only  evi- 
dence that  is  heard. 

The  ease  of  Thomas  Nash,  alias  Jonathan  Robbins,  was  brought 
before  the  Sixth  Congress,  A.  D.  1799.  Mr.  Livingston  offered  a 
series  of  resolutions  relative  to  this  case,  and  spoke  upon  it. 
Nash  having  committed  a  murder  on  a  British  frigate  on  the  high 
seas,  and  having  escaped  to  this  country,  the  British  government 
demanded  his  extradition  under  the  27th  section  of  Jay's  Treaty. 
President  Adams  advised  and  requested  the  Judge  to  deliver  up 
the  prisoner.  The  resolutions  of  Mr.  Livingston  were  to  the 
effect,  that  the  questions  involved  were  matters  exclusively  of 
judicial  inquiry,  and  that  the  interference  of  the  President  was 
dangerous  to  the  independence  of  the  judiciary. 

These  resolutions  were  the  occasion  for  the  celebrated  speech 
(on  the  other  side  of  the  case)  by  John  Marshall.  Starting  with 
the  proposition  that  an  off'ence  committed  on  board  of  a  public 
ship  of  war,  on  the  high  seas,  is  committed  within  the  jurisdiction 
of  the  nation  to  whom  the  .ship  belongs,  he  maintained  that  it  was 
the  duty  of  the  Executive  Department  of  the  Government  to  see 
to  the  surrender  of  the  prisoner  in  conformity  with  the  treaty  of 
1794.  In  accordance  with  this  view,  the  resolutions  of  Mr.  Liv 
ingston  were  defeated  by  a  vote  of  thirty-five  to  sixty-one.  Nash 
was  given  up,  and  upon  being  tried  in  England,  executed  there. 
The  speech  of  Marshall  raised  him  at  once  to  the  leadership  of  the 
Administration  party  in  the  House,  and  by  its  extraordinary 
power  attained  for  him  the  highest  reputation  throughout  the 
country. 

In  the  same  Congress,  Mr.  Livingston  moved  for  a  committee 
to  enquire  and  report  whether  anj^  alterations  could  be  made 
in  the  penal  laAvs  of  the  United  States,  by  substituting  milder 
punishments  for  certain  crimes  for  which  infamous  and  capital 
punishments  were  then  inflicted.  The  committee  was  appointed 
and  he  was  made  chairman.     Shortly  afterwards  he  offered  a 


10 

spcond  resolution,  requesting  the  President  to  obtain  for  the 
information  of  Conjrress,  detailed  statements  respecting  the  trials 
and  convictions  which  had  taken  place  under  existing  laws,  and 
a  year  later  Mr.  Livingston  moved  for  and  obtained  the  appoint- 
ment of  a  committee,  of  which  he  was  made  chairman,  to  report 
whether  any  and  what  alterations  were  necessary  in  the  penal 
laws  of  the  United  States,  and  to  report  by  bill  or  otherwise. 

Mr.  Livingston  retired  from  Congress  with  the  contest  for  the 
Presidency  between  Jefferson  and  Burr.  There  wero  thirty-rivti 
ballots  without  any  election.  On  the  thirty-sixth,  Mr  Jefferson 
was  declared  to  have  been  elected  President  of  the  United  States. 
Mr.  Livingston  adhered  to  him  steadily  throughout  the  balloting. 
The  vote  of  New  York  stood  six  for  Jefferson,  four  for  Burr.  The 
change  of  one  vote  would  have  made  a  tie  and  have  lost  Jefferson 
the  vote  of  the  State,  if  not  the  election.  The  fact  is  tliat  Liv- 
ingston not  only  declined  to  give  Burr  his  support  in  any  event, 
but  kept  up  throughout  the  great  struggle  relations  of  the  most 
confidential  character  with  Mr.  Jefferson. 

March  13,  1801,  Mrs.  Livingston  died.  There  is  a  record  of  the 
event  made  by  Mr.  Livingston.  It  had  pleased  heaven  to  dissolve 
a  union  which  for  thirteen  years  had  been  blessed  with  its  own 
harmony  — with  uninterrupted  felicity  rarely  to  be  met  with. 
Formed  by  mutual  inclination  in  the  spring  of  life,  it  was 
cemented  by  mutual  esteem  in  its  progress  and  was  terminated  by 
a  stroke  as  sudden  as  it  was  afflictive.  Three  or  four  days  later 
Mr.  Livingston  was  appointed  United  States  Attorne}'  for  the 
District  of  New  York,  and  on  the  24th  day  of  August  en.suing, 
upon  the  removal  from  office  of  Richard  Varick.  he  wa;  instalNvl 
Mayor  of  the  City  of  New  York.  lie  was  now  thirty-seven  years 
old. 

The  Mayor  at  the  time,  in  addition  to  his  multifariou.s  duties 
aa  Chief  Magistrate,  was  required  to  preside  over  a  high  court 
exercising  botli  criminal  and  civil  jurisdiction.  lie  sat  on  the 
trial  of  capital  cases.  It  was  his  part  also  to  preside  over  th^' 
Common  Council,  and  according  to  the  custom  of  the  day,  to 
receive  distinguished  strangers.  Mr.  Living.ston's  qualifications 
for  the  place  were  very  eminent,  and  he  applied  himself  to  the 
performance  of  the  functions  of  office  with  utmost  diligence.    Ili^; 


11 


charges  to  juries  were  received  Avith  great  public  favor.  He 
reformed  the  rules  and  practice  of  the  court  in  civil  actions,  and 
published  a  volume  of  reports  entitled  Judicial  Opinions,  deliv- 
ered in  the  Mayor's  Court  of  the  City  of  New  York  in  the  year 
1802.  He  proposed  to  the  Mechanics'  Society  to  found  jointly 
with  the  city  an  establishment  for  the  employment  of  strangers, 
the  first  month  of  their  arrival,  secondly  of  citizens  who  from 
sickness  and  casualty  were  out  of  work,  third  of  widows  and 
children  incapable  of  labor,  fourth  of  discharged  convicts.  The 
benevolence  of  his  nature  made  him  dwell  with  enthusiasm  upon 
the  results,  in  the  suppression  of  mendicity,  the  prevention  of 
crime,  and  the  reformation  of  criminals,  for  which  he  hoped,  if 
the  measures  urged  by  him  were  adopted. 

The  summer  of  1803  brought  with  it  yellow'  fever  to  New  York. 
The  people  were  panic-stricken,  but  the  Mayor,  undismayed, 
remained  steadfast  at  his  post  of  duty.  He  made  a  list  of  the 
sick,  and  visited  them  daily  at  their  homes  and  in  the  hospitals, 
and  ascertained  and  supplied  their  M^ants.  He  traversed  the  town 
day  and  night.  He  went  everywhere,  and  stimulated  to  duty 
priests,  doctors  and  nurses,  and  the  ^^atchmen  on  guard.  At  last 
he  succumbed  to  the  pestilence,  contracted  in  his  visits  of  conso- 
lation and  mercy  to  sufferers  among  the  poor.  Recovering  after 
a  short  but  violent  attack  of  fever,  he  found  himself  the  beloved 
object  of  public  gratitude. 

The  greatest  misfortune  of  his  life— and  he  met  with  some 
cruel  ones — now  befell  ]\Ir.  Livingston.  While  the  yellow  fever 
was  raging,  in  the  month  of  August,  his  attention  w^  called  to 
his  accounts  as  United  States  Attorney  (charged  at  that  time 
with  the  collection  of  funds  recovered  in  litigation  for  the  govern- 
ment) as  showing  that  he  had  become  indebted  to  the  govern- 
ment in  a  considerable  amount.  George  Bancroft,  historian  of 
the  United  States,  relates  that  upon  his  recovery  from  illness, 
he  found  that  he  had  been  defrauded  by  a  clerk,  and  that  he  was 
a  debtor  to  the  government  beyond  his  means  of  immediate  pay- 
ment. Without  a  word  of  complaint,  crimination  or  excuse,  he  at 
once  devoted  his  inheritance,  his  acquisitions,  the  fruit  of  his  pro- 
fessional industry,  to  the  discharge  of  his  obligation  to  the  gov- 
ernment, and  for  near  a  score  of  years  gave  himself  no  rest,  till 


IL' 


he  had  paid  it,  principal  and  interest,  without  defalcation.  "With- 
out waiting  for  an  adjustment  of  his  accounts,  he  proceeded  to 
confess  jud^rinent  in  favor  of  the  United  States,  conveyed  his 
property  to  a  trustee  for  sale  and  an  application  of  the  proceeds 
to  the  payment  of  his  debt,  and  resi^nied  botli  his  offices.  Leaving 
his  children  in  the  care  of  his  brothei-.  John  K.  Livingston,  and 
being  provided  with  only  one  hundred  dollai-s,  and  a  letter  of 
credit  for  one  thousand  more,  he  embarked  during  the  last  week 
in  December,  two  months  after  withdrawing  from  the  Mayoralty 
of  New  York,  as  a  pa.sseuger  on  board  a  vessel  bound  for  New 
Orleans. 

Governor  Clinton  wrote  to  him  to  express  his  sincere  regrets,  as 
well  from  considerations  of  a  personal  as  of  a  public  nature,  for 
his  resignation  of  the  highly  important  office  he  held,  and  which 
he  was  so  eminently  (jualified  to  fill.  A  conimittee  of  the  Common 
Council  sent  him  an  address.  They  said  they  would  merit  the 
reproaches  of  their  fellow-citizens  and  fail  in  duty  to  themselves 
if  they  passed  over  in  silence,  the  affecting  moment  which  termi- 
nated his  administration  as  fir«t  magistrate  of  the  City  of  New 
York.  They  praised  the  learning  and  discernment  of  his  judicial 
decisions  — his  vigilance,  activity  and  zeal  as  an  executive  officer, 
his  impartiality  and  independence.  They  expressed  admiration 
for  the  zeal  and  philanthropy  with  which  amid.st  the  affliction  and 
dismay  of  the  epidemic  he  had  sought  out  and  relieved  distress, 
and  sacrificed  his  personal  safety  to  that  of  the  suffering  poor. 
They  declared  that  they  would  be  destitute  of  the  feelings  of  men 
if  they  could  part  with  him  without  regret.  They  thanked  heaven 
1  jr  having  spared  his  life.  They  said  that  he  had  erected  in  the 
I  rcasts  of  the  virtuous  a  monuiiuMit  which  calumny  could  not 
.ully  nor  time  efface.  Tiny  added  that  their  attachment  to  his 
person  would  endure  with  tlie  recollection  of  his  virtues,  and  that 
lu'  would  take  with  him  tiieir  lasting  esteem,  and  their  pi-ayers  for 
his  pn)sperity  and  hapi)in(»s.s. 

I  l)ring  my  narrative  to  a  close  in  the  pn'sent  iiumediate 
connection,  by  referring  to  the  statement  of  Mr.  Livingston  him- 
self some  time  before  he  was  enabled  to  discharge  his  debt  to  the 
government,  and  made  in  the  celebrated  Batture  controversy  in 
which  he  became  involved  with  Mr.  Jefferson.  Mr.  Livingston 
said : 


13 


"  It  is  time  that  I  should  speak.  Silence  now  would  be  cruelty 
'to  my  children,  injustice  to  my  creditors,  treachery  to  my  own 
'fame.  The  consciousness  of  a  serious  imprudence,  which  cre- 
'ated  the  debt  I  owe  the  public,  I  confess  it  with  humility  and 
'  regret,  has  rendered  me  perhaps  too  desirous  of  avoiding  public 
'observation— an  imprudence  which,  if  nothing  can  excu.se,  may 
'at  least  be  accounted  for  by  the  confidence  I  placed  in  an  agent 
'who  received  and  appropriated  a  very  large  proportion  of  the 
'sum,  and  the  moral  certainty  I  had  of  being  able  to  answer  any 
'call  for  the  residue  whenever  it  should  be  made.  Perhaps,  too, 
'it  may  be  atoned  for  in  some  degree  by  the  mortification  of 
'exile,  by  my  constant  and  laborious  exertions  to  satisfy  the 
'claims  of  justice,^ by  the  keen  disappointment  attending  this 
'deadly  blow  to  the  hopes  I  had  encouraged  of  pouring  into  the 
'public  treasury  the  fruits  of  my  labor,  and  above  all  by  the 
'humiliation  of  this  public  avowal." 

Mr.  Livingston  on  arriving  in  New  Orleans  in  December,  1804, 
found  a  town  of  8056  inhabitants,  including  1335  free  p.Tsons  of 
color  and  2773  slaves.  He  rose  immediately  to  the  leadership  r.t 
the  bar.  His  life  passed  now  into  another  period  of  American  his- 
tory, which  may  be  designated  as  that  in  which  Republican  Rep- 
resentative Institutions  showed  themselves  capable  of  indefinite 
expansion,  and  the  State  of  Louisiana,  under  the  protection  of 
the  Constitution  and  laws  of  the  United  States,  was  founded  and 
developed. 

By  the  treaty  of  Ildefonso  of  October  1,  1800,  Spain  entered 
into  a  conditional  agreement  to  cede  the  colony  of  Louisiana  to 
France,  and  the  retrocession  took  place  by  treaty  March  21,  1801. 
The  French  made  preparations  to  take  possession  of  the  colony, 
but  an  army  of  twenty  thousand  men  designed  for  the  purpose 
were  blockaded  in  the  ports  of  Holland  by  an  English  squadron. 
The  American  government  took  just  advantage  of  the  condition 
of  afi^airs  to  urge  upon  France  the  expediency  of  selling  the 
province.  There  is  an  authoritative  statement  by  Edward  Living- 
ston relative  to  the  negotiations.  Robert  R.  Livingston,  the  Ameri- 
can Minister  to  France,  enjoyed  an  established  reputation  for 
honor  and  integrity,  and  celebrity  as  a  man  of  literature  and 
science.    He  foresaw  the  advantage  that  must  result  to  his  own 


14 

counfry  from  the  acriuisitirm  of  Ijouisiana,  ami  felt  honest  pride 
in  being  instrumental  in  promoting  it.  He  paved  the  way  for  this 
important  purchase  by  official  notes,  indirect  communications,  and 
printed  essays;  and  leaving  the  beaten  track  of  official  notes  to 
ministers,  resolved  on  a  bold  and  unusual  measure,  and  addressed 
Napoleon  himself.  The  little  value  of  Louisiana  to  France  was 
insisted  on,  the  question  that  would  arise  with  the  United  States 
relative  to  the  navigation  of  the  ^Mississippi,  and  the  right  of 
deposit  secured  to  us  by  Spain  as  well  as  the  certainty  of  con- 
quest if  the  war  should  be  renewed  with  Great  Britain.  The 
result  proved  a  great  success.  Mr.  ^lonroe  arrived  in  Paris  in 
time  to  co-operate  with  Robert  R.  Living.ston  in  fixing  the  price, 
and  by  the  treaty  concluded  at  Paris  on  the'i6th  of  April,  ]8(»r{, 
the  First  Consul  ceded  in  the  name  of  the  French  Republic,  for 
the  sum  of  $'15,000,000,  for  ever  and  in  full  sovereignty,  the 
province  of  Louisiana  to  the  United  States.  The  possession  of  the 
French  under  the  treaty  lasted  only  from  November  30  to  Decem- 
ber 20,  1803.  On  the  date  last  named.  Judge  Martin's  history 
relates,  that  the  tri-colored  flag  of  France  was  displayed  at  sunrise 
on  the  public  square  which  faces  this  building  in  New  Orleans  for 
the  last  time.  It  made  room,  in  token  of  the  transfer,  for  the 
Stars  and  Stripes,  under  repeated  peals  of  artillerA^  and  musketry. 

The  territory  thus  acquired  included  at  least  Louisiana,  Arkan- 
sas, Missouri,  Iowa,  the  Indian  Territory-.  Oklahoma.  Nebraska, 
North  Dakota,  South  Dakota,  the  greater  portion  of  Minnesota, 
Montana,  Colorado.  Wyoming  and  Kansas.  The  province  of 
Louisiana  extended  to  the  Rocky  ^lountains.  Florida  was  ac- 
quired from  Spain  in  ISlD.  W(>st  Florida  had  been  occupied  by 
the  United  States,  as  part  of  the  Louisiana  purchase,  and  also  on 
the  principle  of  self-preservation.  The  Oregon  territory  (occu- 
pied by  the  T'nited  States  and  claimed  as  part  of  the  Louisiana 
purchase,  and  later  (1818 — 184r))  held  in  joint  occupancy  with 
Great  Britain)  was  afterwards  (1846),  by  treaty  with  Great 
Britain,  recognized  to  belong  to  the  T'nited  States,  and  included 
the  States  of  Oregon.  "Washington  and  Idaho. 

The  territory  here  dcsigiuited  includes  a  great  part  of  the 
Granary  of  the  World,  feeding  much  of  the  United  States  and 
supplying  the  deficiencies  of  Europe  and  Asia.     From  reference 


I 

I 


I 


15 

to  statistic;?,  the  development  of  wealth  and  power  which  has 
resulted  is  sai'd  to  be  without  parallel  in  the  annals  of  the  human 
race.  In  1790  the  population  of  the  United  States  is  set  down 
at  3,819,876.  In  1900  the  population  of  the  Louisiana  pur- 
chase amounted  to  14,708,616.  The  production  of  wheat  that  year 
was  263,560,935  bushels.  The  production  of  corn  was  1,011,932,967 
bushels.  The  production  of  oats  was  70,367,489  bushels.  Farm 
animals  were  valued  at  $825,000,000.  Colorado  alone  has  pro- 
duced since  her  mines  have  be^un  to  be  worked  $16,000,000 
copper,  $308,000,000  gold,  $372,000,000  silver,  $116,000,000  lead. 
Montana  in  four  metals  produced  in  less  than  forty  years  more 
than  $1,000,000,000.*  The  Bureau  of  Statistics  of  the  Govern- 
ment estimates  that  the  Louisiana  purchase  territory  is  about  the 
size  of  Great  Britain  and  Ireland,  Holland,  Belgium,  Germany, 
France  and  Spain,  which  countries  have  an  aggregate  population 
of  200,000,000. 

Only  a  very  imperfect  conception  of  the  true  value  of  the 
Louisiana  territory  is  to  be  formed  from  figures  even  such  as  are 
here  given.  When  the  bold  genius  and  character  of  the  people 
who  inhabit  this  vast  region  is  taken  into  consideration,  and  the 
effect  public  education  is  destined,  in  the  cour.se  of  time,  to  have 
upon  them— their  probable  growth  not  only  in  numbers,  but  in 
morality  and  religion,  and  in  obedience  to  the  cause  of  law  and 
order — in  industry  and  invention— in  commerce  and  internal  im- 
provements—in letters  and  science— in  devotion  to  American  in- 
stitutions, and  in  enlightened  love  of  country— no  one  is  to  be 
found  confident  enough  of  prophetic  power  to  foretell  their 
influence  upon  the  Hej^ublic.  There  is  not  at  the  present  day, 
one  hundred  years  after  the  purchase,  treasure  enough  among 
the  nations  of  the  earth  to  buy  this  territory,  nor  could  the  com- 
bined armies  and  navies  of  the  world  wrest  it  by  conquest  from 
the  United  States ! 

Mr.  Livingston,  when  he  came  to  New  Orleans,  found  the  Civil 
Law  of  Spain  in  force  there  as  derived  from  the  Roman  jurispru- 
dence. The  sweetness  of  his  temper,  and  his  very  simple  and 
unaffected  address,  made  it  easy  for  him  to  extend  his  acquaint- 
ance, and,  his  reputation  for  talents  spreading  rapidly,  he  ac- 


'The  World's  Work,  May,  1903. 


l(i 


quired  from  the  befrinnin*?  a  lar«;e  practice.     He  \va>  an  accom- 
plished liniruist  in  French.  Spanish  and  TJerman. 

In  November  foliowinfr  his  arrival,  he  was  mainly  instrumental 
in  obtaininj;  a  decision  by  wliich  the  Roman  Civil  Law  was 
retained  as  tlie  foundation  of  the  local  jurisprudence.  The  or^janic 
law  provided  for  the  administration  of  justice  according  to  the 
Common  Laic,  such  being:  the  provision  of  the  ordinance  of  1787 
of  Nathan  Dane  for  the  jLrovernment  of  the  northwest  territory. 
The  le^'islation  of  Congress  establishing'  a  {rovernment  for  the 
territory  of  Orleans,  adopted  the  provision  of  the  ordinance  of  1787 
by  reference.  The  Act  of  Con^'ress  declared  that  the  inhabitants 
of  the  territory  shall  always  be  entitled  to  the  benefits  of  the  writ 
of  habeas  corpus,  and  of  the  trial  ])y  jury,  but  also  provided  that 
the  law  in  force  in  the  territory  and  not  inconsistent  with  its  pro- 
visions, should  continue  in  force  until  modified  or  repealed  by  the 
Lejrislature. 

The  first  attem]>t  to  ol)tain  a  decision  by  which  the  Common 
Law  of  Enirland  should  l)e  i>ronounced  to  be  the  law  of  Louisiana, 
was  made  when  Judfie  John  B.  Prevost  was  Judj;e  of  the  Superior 
Court  of  the  territory.  An  array  of  counsel,  En«rlish,  Scotch  and 
Irish,  contended  that  the  Act  of  Confrress  in  question  provided 
tot  idem  verbis  for  the  Common  Law  of  En^dand.  They  had  no 
other  frround  to  stand  upon.  Edward  Livinirston,  Louis  Moreau 
Lislet,  Pierre  Derbi<rny  and  Etienne  ]\Iazur(»au  appeared  on  the 
other  side.  ^Ir.  Maznreau  te-tifies  that  the  attack  was  a  formid- 
able one.  The  adversary  side  did  tbfir  utmost.  But  when  Livinp- 
"ston  spoke  he  demolished  their  argument,  and  it  erundiled  to  its 
base.  The  oi)in!on  of  the  court  swept  away  the  d«'bris  and  dis- 
persed them.  The  court  held  that  the  law  in  force  Ix'in^  Roman 
and  S[)anish  and  French,  it  results  that  the  term  Common  Late 
when  applied  to  the  territory  must  be  e(|uivalent  to  the  Common 
Law  of  that  Land,  or  the  Civil  Law  of  the  Land. 

^lazureau  wrote  to  ^Ir.  Livin<rston  the  day  aftfr  In-  beard  the 
latter  speak.  He  confrratulated  him  on  the  skill  and  rare  oio- 
(juenee  he  bad  displayed.  lie  ebaractcrized  his  ('fl'oi-t  as  a  ])ro- 
found  discourse  t"roiii  lieirimiin-x  to  end.  and  he  declared  that  in 
the  peroration  iiivintrston  had  been  ^reat.  snblim(\  astoni-ihiufr. 
"Happy,"  (he  e.xelaimed)  "are  the  people  whose  interests  are 
defended  by  a  man  like  you!" 


17 


The  second  attempt  in  favor  of  the  Common  Law  of  England 
was  made  after  the  resignation  of  Judge  Prevost  and  after  Judge 
Sprigg  had  gone  away,  and  Judge  Matthews,  in  obedience  to 
existing  law,  sat  alone.  The  second  effort  would  not  have  been 
made,  in  all  probabilitj',  if  the  decision  given  in  the  first  case  as 
just  related,  had  been  copied  upon  the  minutes  of  the  court.  This 
surprising  omission,  according  to  Mr.  Mazureau,  was  the  sole 
cause  for  the  fresh  assault  made  by  the  enemies  of  the  law  of 
Louisiana  upon  the  jurisprudence  of  the  country.  It  failed,  how- 
ever, signally.  It  proved  as  little  creditable  to  those  who  made  it, 
and  as  little  profitable  as  their  original  endeavor. 

The  observation  of  Chief  Justice  Eustis,  in  the  Succession  of 
Franklin,  7  Ann.  395,  is  one  well  deserving  of  being  recalled.  The 
Chief  Justice  says,  that  the  most  eminent  members  of  the  bar 
conversant  with  the  Common  Law  of  England  did  not  favor  its 
introduction  into  Louisiana  as  a  system.  The  Supreme  Court,  in 
Reynolds  vs.  Swain,  13  La.  E.  198,  treating  Article  3251  of  the 
Civil  Code  of  1825,  and  the  famous  sweeping  clause,  Section  25 
of  Article  83  of  1828,  decided,  that  the  repeal  of  the  Roman. 
Spanish  and  French  Civil  Laws  in  the  Article  cited,  and  in  the 
repealing  clause  referred  to  of  the  Act  of  1828,  only  embraced  the 
positive,  written  or  statute  laws  of  those  nations  and  of  this  State, 
such  as  were  introductory  of  a  new  rule,  and  did  not  abrogate  the 
established  principles  of  law,  settled  by  the  decisions  of  courts  ol 
justice.  The  repeal  spoken  of  in  the  Code,  and  the  Act  of  lb28, 
could  not,  according  to  the  court,  extend  beyond  the  laws  which 
the  Legislature  itself  had  enacted ;  for  it  is  these  alone  whicV  it 
could  repeal. 

The  course  of  Mr.  Livingston  in  leading  the  way  for  securing 
to  the  people  of  Louisiana  the  jurisprudence  to  which  they  had 
been  accustomed,  followed  the  principles  of  public  law^  and  the 
practice  of  nations.  It  contributed  powerfully  to  make  the  past 
history  of  the  people  fit  harmoniously  with  the  future,  into  which 
events  were  bearing  them,  and  by  assuring  them  the  institutions  to 
which  they  were  accustomed,  gave  them  proof  of  the  justice  and 
liberality  of  American  policy.  It  is  not  difficult  to  see  v.hat  advan- 
tages the  State  of  Louisiana  inherited  at  once  in  the  possession  of 
so  perfect  a  system  as  that  of  the  Roman  Law.    The  study  of  this 


18 

{ZToat  hraiu'li  of  juris|)iud"uc-e  in  our  coiiutry  derive!  a  stron;?  im- 
pulse from  the  admission  into  the  Union  of  a  new  State,  the  basis 
of  whose  jurisprudenee  was  the  Civil  Law.  Diseussions  in  cases  of 
importance  in  the  Supreme  Court  of  Louisiana,  in  the  Supreme 
Court  of  the  I'nited  States,  and  in  juristical  commentary,  shed  a 
flood  of  lifzht  upon  le«ral  science.  In  the  end,  the  cause  of  general 
learning  itself  was  advanced. 

The  second  year  of  ^Ir.  Livingston's  residence  in  New  Orlf^ans 
he  recommended  the  simplification  of  the  Practice,  and  prepared 
a  new  system  of  legal  procedure,  which  was  adopted  April  10, 
1805.  It  substituted  a  simple  system  for  the  prevailing  ore.  It 
was  based  on  the  plan  of  requiring  each  party  to  state  in  intelli- 
gible language  the  cause  of  complaint  and  the  grounds  of  de- 
fence. His  Act  included  twenty-two  .sections.  Writing  about  it 
twenty-five  years  later  to  Jeremy  Bentham,  ]\Ir.  Livingston 
claimed,  although  from  its  novelty,  many  questions  might  arise 
under  it  before  the  court  and  suitors  would  become  accustomed 
to  its  provisions,  that  the  Louisiana  law  bqoks  from  1808  to  1823 
contained  fewer  cases  depending  upon  disputed  points  of  prac- 
tice, than  occurred  in  the  single  year  of  1808  m  New  York,  where 
they  i)roceeded  according  to  the  English  law.^  He  told  a  young 
gentleman  newly  arrived  from  a  Connnon  Law  State,  who  ex- 
pressed much  solicitude  concerning  the  time  it  would  take  him  to 
learn  the  practice  in  Louisiana,  and  who  was  engaged  to  dim; 
with  him  at  four  o'clock  the  next  day.  that  he  thought  he  could 
initiate  him  in  all  the  mysteries  of  practice  before  tlu-y  .sat  down 
to  dinner.  It  is  und<Miiable  that  Mr.  Livingston's  Act  gave  great 
satisfaction,  and  1  find  it  spoken  of  in  a  recent  pajJiM*  of  the 
American  Har  Association  in  terms  of  high  proft^ssioiiai  piaise. 

June  3,  180.").  .Mr.  Livingston  was  married  at  tlic  Archbishopric 
in  New  Orleans  to  Madame  Ijouise  Moreau  de  Lassy,  (born 
DWvezac  de  Cast  era,*)  a  beautiful  and  accomplished  lady  of  rar(> 
mental  eiidownuMits  and  of  many  virtues.  She  was  descended 
from  a  distinguish<^d  French  family  that  bad  settled  in  the 
island  of  St.  Homingo,  and  tied  from  there  to  escape  the  mas.sacre 
which  attended  the  uprising  of  slaves  in  the  revolution.  Once 
more  Mr.  Livingston  had  a  home,  but,  although  he  eti joyed  domes- 
tic felicity  again.  In-  was  beset  by  dantrei-s  and  difllcidties. 

•The  American  branch  of  the  tamily  Hpolt  and  called  their  name  Davexac. 


19 

General  James  Wilkinson  was  commander-in-chief  of  the  Army 
of  the  United  States.  He  had  recently  returned  to  New  Orleans 
from  a  visit  to  Washington.  Mr.  Livingston  believed  himself  to 
be  on  good  terms  with  him.  The  General  caused  the  arrest  of  a 
certain  Dr.  BoUman,  and  of  two  other  persons  for  alleged  trea- 
sonable practices  connected  with  their  asserted  intimate  associa- 
tion with  Burr.  Mr.  Alexander,  a  member  of  the  New  Orleans 
bar,  having  made  application  on  behalf  of  these  persons  for  a 
writ  of  habeas  corpus,  retained  Mr.  Livingston  as  associate  coun- 
sel. General  Wilkinson  appeared  in  the  Superior  Court  of  the 
territory.  Judge  George  Matthews  presiding,  to  show  cause  why 
the  prisoners  had  been  arrested ;  and  being  citizens,  under  the 
protection  of  the  laws,  by  what  authority  their  persons  were 
detained.  The  General  came  into  court  in  the  full  uniform  of  his 
high  rank,  attended  by  a  brilliant  staff  armed  and  equipped  like 
himself.  He  made  his  statement,  asked  that  Alexander  be  sent  for 
and  placed  under  arrest,  and  then  proceeded  to  denounce  Living- 
ston by  name.  Mr.  Mazureau  was  an  eye-witness  of' the  scene.  I 
refer  to  his  statement  of  it.  General  Wilkinson,  in  reply  to  the 
mandate  of  the  court,  made  an  address,  in  which  his  title  of 
General-in-Chief  of  this  military  division  was  frequently  repeated 
Avith  significant  emphasis.  His  speech  concluded  with  the  avowal 
that  the  accused  had  beep  arrested  solely  by  the  order  of  the 
General,  and  that  he  assumed  the  responsibility  for  their  deten- 
tion. The  court  having  replied,  with  judicial  calmness  and  dig- 
nity, that  such  a  return  to  the  writ  was  quite  insufficient  to  sat- 
isfy the  requirements  of  the  law,  the  respondent,  to  complete  his 
arbitrarj^  conduct,  insisted  upon  his  clearly  indefensible  position 
with  disdainful  defiance.  Accordingly  the  court  soon  resounded 
with  his  menace  and  invective,  directed  not  against  the  Judges 
but  against  the  counsel  who  had  presumed  to  invoke  in  behalf  of 
the  prisoners  the  protecting  writ  of  the  law.  In  order  to  make 
perfect  the  triumph  of  the  sM^or.d  over  the  law,  he  added,  in  a 
burst  of  passion,  that  he  would  deal  with  counsel  for  the  prisoners, 
and  whomsoever  dared  to  support  them,  without  regard  to  place 
or  to  the  position  they  might  hold  in  the  country. 

Mazureau 's  account  is  that  Edward  Livingston,  thus  attacked, 
and  with  such  temerity  in  the  sanctuary  of  justice,  displayed  in 


20 


their  full  vipror  as  well  as  in  all  their  splendor,  liis  talents  of  ora- 
tory. Cen.  Wilkinson,  confident  of  triumph,  had  no  sooner  paused 
than  Livinjrston  in  turn  rose  with  the  simplicity  which  was  so 
channin»r  a  feature  of  his  address,  and  after  modestly  thanking 
the  Jud^'cs  for  the  symjjathy  they  seemed  prepared  to  extend  to 
his  situation,  he  proceeded  to  improvise  one  of  those  discourses 
worthy  of  the  Roman  consul  when  he  confounded  Catiline, — 
discourses  which  takiiif;  possession  of  the  listeners  fill  thrm  with 
overpowering  emotions— electrify,  subdue  and  transj)ort  them, 
falling  upon  them  like  a  thunderbolt,  and  scarcely  leaving  them 
the  faculty  to  discern,  that  it  is  only  a  man  who  si)eaks  and  not  a 
divinity  who  fulniines  over  the  scene.  Justice  was  for  the  time 
being  baffled.  Tlie  pri.soners  were  not  produced,  because,  as  was 
stated,  they  had  l)een  removed  from  the  jurisdiction  of  the  court. 
They  were  carried  to  Wasliington.  where  nothing  was  proved 
against  them.  Alexander  was  seized  and  hurried  off  with  the 
rest,  but  the  triumph  of  Livingston  was  in  the  end  complete.  He 
had  defied  the  military  power;  and  from  that  time  arrests  by 
military  orders  ceased  and  the  empire  of  law  was  restored. 

When  at  a  later  time  Mr.  Livingston  left  New  Orleans  to  take 
service  in  high  public  station  under  the  government  of  the  United 
States.  Mr.  IMaznreau  succeeded  to  the  leadership  of  the  New 
Orleans  bar.  He  was  a  man  of  truly  great  abilities.  A  native  of 
France,  he  liad  tied  the  despotism  of  the  greatest  captain  of 
modern  times,  in  search  of  Civil  Tiilierty.  which  he  declared  to  be 
the  idol  of  his  heart.  In  the  wielding  of  satirical  and  sarcastic 
invective  he  has  had  no  equal  in  the  liistory  of  the  Bar  of  the  State. 
His  address  in  f|uestiori  is  upon  the  life  and  character  of  (Jeorge 
^Fatthews.  Tt  contains,  in  addition  to  a  tribute  to  the  virtues  and 
learning  of  Judge  Matthews,  as  an  excell(>nt  magistrate,  a  care- 
fully considered  account  of  the  character  of  the  population  of 
Louisiana  and  (»f  the  ])eginning  of  its  civilization,  with  an  exami- 
nation into  the  institutions  of  the  territory,  and  of  its  early  juris- 
prudence. For  masterj'  of  difficult  topics,  and  for  lucid  exposi- 
tion of  them  — for  knowledge  of  law  and  practice  — for  attachment 
to  free  principles  of  government  — for  elevation  of  sentiment,  and 
for  true  dignity  and  elorpience,  I  do  not  hesitate  to  claim  that  it 
will  bear  comparison  with  the  best  efforts  of  ancient  or  of  modern 
oratory. 


21 


Not  long  after  settling-  in  New  Orleans,  Mr.  Livingston  became 
involved  in  the  celebrated  Batture  controversy,  the  principal 
question  in  which  was,  whether  or  not  the  owner  of  a  riparian 
estate  front  to  the  Mississippi  river,  acquires  the  batture  which 
may  thereafter  arise  before  the  estate,  or  in  other  words  whether 
or  not  the  batture  so  situated  is  subject  to  private  ownership  ? 

The  faubourg  St.  Mary  or  Ste.  INIarie,  from  which. the  Batture 
Ste.  Marie  gets  its  name,  extended  from  Common  to  Delord 
streets  above,  and  embraced  the  front  and  public  space  between 
New  Levee  street  and  the  Mississippi  river.  The  Jesuits,  early 
in  the  eighteenth  century,  became  possessed  of  some  lands  on  the 
Mississippi  adjacent  to  New  Orleans.  The  order  of  Jesuits  was 
abolished  by  France  in  1763  just  before  the  cession  of  the  prov- 
ince of  Orleans  to  Spain,  and  the  property  of  the  order  was  for- 
feited. Under  an  edict  of  confiscation  the  land  referred  to  was 
sold  and  came  into  the  possession  of  Bertrand  Gravier,  who 
divided  it  into  suburban  lots  and  conveyed  it  to  several  pur- 
chasers. In  1805,  Mr.  Livingston,  as  counsel  for  Jean  Gravier  in 
his  capacity  of  heir  of  Bertrand  Gravier,  instituted  an  action 
against  the  City  of  New  Orleans,  to  be  quieted  in  the  exclusive 
possession  of  the  alluvial  ground  in  front  of  the  suburb  St.  Mary 
and  commonly  called  the  Batture  St.  Marie,  and  to  prevent  the 
inhabitants  of  the  city  from  trespassing  thereon.  That  suit  was 
terminated  by  a  judgment  recognizing  the  right  of  John  Gravier, 
and  declaring  perpetual  the  injunction  ■  he  had  obtained.  But 
the  case  gave  rise  to  a  great  deal  of  excitement.  Notwithstanding 
the  decision  of  the  highest  tribunal  of  the  country  in  favor  of 
Gravier,  the  inhabitants  found  themselves  deprived  of  what  they 
had  considered  their  rights  to  procure  sand  and  earth  on  the 
batture  for  building,  filling  lots  and  other  uses.  They  continued, 
notwithstanding  the  adverse  decision,  to  assert  a  right  of  enjoying 
the  batture. 

Mr.  Livingston  having  afterwards  purchased  a  portion  of  the 
property  for  himself  from  Gravier,  entered  upon  it  and  began 
to  improve  it.  But  his  endeavors  were  thwarted.  The  populace 
rose  against  him.  They  dispersed  the  laborers  engaged  on  the 
work.  They  called  on  Governor  Claiborne  to  use  military  force. 
The  Governor,  succeeding  in  quieting  the  mob  for  a   season, 


22 

referred  the  matter  to  Washintrton,  representing  that  in  his  opin- 
ion the  Batture  St.  Marie  btlonged  to  the  United  States  as 
Sovereign  over  the  Soil.  President  Jefferson  took  up  the  sub- 
ject. It  was  discussed  in  Cabinet.  The  Attorney  General  giving 
an  opinion  in  favor  of  the  United  States,  the  ^Marshal  of  the  DL«- 
trict  of  Orleans  was  instructed  by  a  letter  of  the  Secretary  of 
State  to  remove  immediately  by  the  civil  power  from  the  Batture 
St.  ATarie  any  persons  who  had  taken  possession  since  the  3rd  of 
March.  Mr.  Livingston  having  applied  for  and  obtained  an 
injunction  from  a  Judge  of  the  Superior  Court,  and  served  the 
same  on  the  Marshal,  the  latter  disregarded  the  writ  of  the  court 
and  dispossessed  hiui.  lie  then  brought  an  action  against  the 
Marshal  in  the  Federal  Court,  to  recover  damages  and  to  be  re- 
instated in  possession,  and  another  against  Mr.  Jefferson  in  the 
District  of  his  residence. 

The  limits  which  belong  to  the  present  occasion  forbid  that  I 
should  follow  the  litigation  in  the  Batture  case  in  detail.  Enough 
has  been  said  to  state  the  original  position  of  the  parties.  Mr. 
Livingston  had  to  contend  against  the  prejudices  of  the  communi- 
ty ;  against  the  efforts  of  the  territorial  government,  and  the  op 
pressive  action  of  the  President  of  the  United  States.  His  fortune 
was  secrificed  in  the  contest,  his  businesB  lo.st,  and  his  life  repeat- 
edly exposed  to  imminent  danger  from  popidar  re.-entment.  He 
complained  to  the  Legislature  that  the  Judges  would  not  li.sten  to 
his  arguincnts  and  the  authorities,  but  he  complained  in  vain.  He 
died  a  very  poor  man.  Under  a  compromise  authorized  by  the 
Legislature  his  family  many  years  after  his  death,  were  enabled, 
at  the  end  of  a  litigation  so  fierce  that  it  is  without  parallel  in  the 
history  of  the  State,  to  realize  a  comparatively  limited  propor- 
tion of  the  proceeds  resulting  from  sales  of  the  batture  property 
where  his  real  interest-s  were  very  large.  Mr.  Jeffer- 
son, forced  to  answer  the  ai)peal  to  tlu;  public  opinion  of 
the  country  which  I\Ir.  Livingston  had  made  in  a  published 
argument  of  extraordinary  learning  and  excellence,  fell  van- 
quished before  the  righteous  demand  of  his  adversary  for  justice, 
and  before  the  superiority  of  his  presentation  of  his  great  cause. 

In  the  case  of  Municipality  No.  2  vs.  Orleans  Cotton  Press,  18 
Ijouisiana  Reports  Kif).  where  the  argtnnent  of  Mr.  Livingston 


23. 

received  critical  attention  in  the  discussions  of  eminent  counsel 
— Etienne  Mazureau  and  Levi  Pierce  for  the  Municipality;  Isaac 
T.  Preston,  Christian  Roselius,  Randell  Hunt,  George  Eustis  and 
Pierre  Soule  for  defendants — scholars  as  well  as  jurists,  qualified 
in  every  way  to  take  up  and  carry  on  a  great  forensic  debate— 
the  result  was  a  signal  victory  in  favor  of  the  right  of  private 
ownership  in  the  Batture  by  way  of  accession.  In  the  case  cited, 
Judge  BuUard,  giving  the  •  opinion  of  the  majority,  said : 
The  right  to  future  alluvial  formation  is  a  vested  .  right.  It 
is  inherent  in  the  property  itself,  and  forms  an  essential  attribute 
of  it,  resulting  from  the  Natural  Law,  in  consequence  of  the 
local  situation  of  the  lands.  The  learned  Judge  observed  that  if 
the  Act  of  1805,  which  incorporated  and  defined  the  limits  of  the 
City  of  New  Orleans,  had  declared  in  explicit  terms,  that  tracts 
of  land  fronting  the  river  should  no  longer  be  entitled  to  any 
alluvion  which  might  be  formed,  but  that  the  same  should  there- 
after accrue  to  the  benefit  of  the  city,  the  Act  would  not  orily 
have  been  unconstitutional,  ,hut  one  of  clear  spoliation.  Speaking 
of  the  Faubourg  St^.  Marie,  Judge  Bullard  added  it  had  long 
since  been  settled  that  the  alluvion  belonged  to  the  front  propri- 
etors, and  had  been  subsequently  dedicated  to  public  use  by  con- 
tract between  them  and  the  city. 

Solitary  among  the  Judges  the  venerable  senior  Judge  of  the 
Supreme  Court  who  presided  over  its  deliberations.  Judge  Mar- 
tin, dissented.  I  think  it  appropriate  to  remind  those  who  have 
been  good  enough  to  listen,  how  Mr.  Livingston  believed  himself 
so  much  aggrieved  by  the  insensibility  or  want  of  power  of  the 
Judge  to  be  moved  or  afifected  by  his  arguments,  that  he  had  tried 
to  have  him  impeached.  The  two  personages  were  so  far  apart 
that  Mr.  Livingston  appeared  with  reluctance  in  the  Supreme 
Court.  In  this  condition  of  affairs,  no  one  will  accuse  the  Judge 
of  having  thought  with  partiality  of  the  talents  of  the  advocate. 
I  am  able  to  add,  on  the  authority  of  Doctor  Thomas  Hunt, 
by  whom  it  was  my  cherished  privilege  to  be  instructed,  on 
local  as  well  as  on  general  topics,  that  Judge  ]\Iartin  on  being 
asked,  in  presence  of  the  conditions  stated,  "Who  is  the  first 
lawyer  in  Louisiana?"  answered  immediately,  "Livingston." 
''Who  next?"  continued  his  interrogator.     "Livingston,"  was 


24 


the  Judge's  ready  reply,  "is  so  easily  first,  that  I  can  name  no 
one  as  second  to  him!'' 

The  bustle  of  Mr.  Livinjrston's  professional  practice  kept  him 
verj'  busy.  If  he  had  yielded  to  retrospection  he  would  have  been 
forever  lost,  lie  had  entertained  great  hopes  of  extricating  him- 
self from  pecuniary  embarrassments  by  success  in  his  adventure 
in  tlif  Hatture  property.  The  luilooked-for  ()])p(>sition  he  met 
with  slimidated  his  exertions,  but  he  could  not  shorten  the  tedious 
course  of  the  complicated  litigation  which  had  develoi)ed  itself, 
and  the  War  of  1812  between  the  United  States  and  (Jreat  Britain 
found  his  personal  interests  still  involved  in  the  courts. 

Circumstances  and  his  own  patriotic  ardor  combined  to  give 
him  the  lead  in  going  to  the  assi<t.;uice  of  General  Jackson.  He 
had  served,  as  has  been  seen,  with  the  latter  in  Congress  and 
agreed  with  him  on  matters  of  public  policy.  Anticipating  the 
course  of  events  and  the  approaching  danger  to  New  Orleans, 
Mr.  Livingston  bad  been  sonic  time  in  correspondence  with  the 
General  at  Mobile,  and  furnished  him  with  maps  and  information 
of  service  to  a  military  officer.  As  early  as  the  month  of  Septem- 
ber, 1814.  he  presided  at  a  meeting  of  citizens,  at  which  resolu- 
tions ofTered  by  himself  were  adopted,  connnitting  the  people  to 
risk  life  and  fortune  in  defence  of  the  country.  lie  delivered  a 
stirring  speech  at  tlic  meeting,  and  a  coiinnittee  having  been 
appointed  to  eo-opefale  witli  tbe  civil  and  military  autborities  in 
suggesting  means  of  defence  in  calling  fortb  the  energies  of  the 
country,  to  repel  invasion  and  to  preserve  domestic  tranipiility, 
he  was  nuide  chairman. 

General  Jackson,  arriving  in  New  Orleans  December  2nd.  he 
was  among  the  first  to  welcome  him.  He  translated  the  speech  in 
rpply  made  by  Jackson,  so  that  instead  of  being  lo.st.  it  reached 
the  ears  of  tho.se  who  c»>uld  not  understand  English  in  tlu'  inspir- 
ing words  of  tbeir  own  langiuige.  The  listeners,  electrified,  were 
mllied  to  the  (ieneral's  suj)port.  Mr.  Tjiviugston  and  himself 
were  thenceforward  inseparable.  The  fornu-r  became  the  Gen- 
eral's confidential  adviser,  his  military  .s»'cretary.  his  spokesman 
and  interpreter.*  lie  wrote  an  ehunient  proclamation  for  the 
General,  which  was  published  December  ir)th,  and  a  <'lear  neces- 
sity being  found  to  exi.st  for  the  declaration  of  nuirtial  law,  it 


"  Irving 's  Washington. 


25 


was,  with  Livingston 's  advice,  resorted  to.  December  23rd,  he  re- 
paired on  board  the  Caroline  and  explained  to  Commodore  Pat- 
terson Jackson's  plan  of  battle.  In  the  night  attack,  which  fol- 
lowed, he  and  his  brother-in-law,  ]\Iajor  D'Avezac  were  thanked 
in  general  orders  for  calm  and  deliberate  courage.  D  'AVezac  was 
a  wit  and  a  scholar,  and  a  student  of  rare  acquirements  in  the  de- 
partment of  history.  I  have  it  on  the  relation  of  Christian  Rose- 
lius,  who  studied  law  in  his  office,  that  he  was  a  more  eloquent 
criminal  lawyer  than  Pierre  Soule.  Lewis  Livingston,  then  a 
boy-captain  on  the  General's  staff,  shared  these  honors  with 
his  father  and  uncle.  The  service  was  dangerous,  but  glorious. 
When  Jackson  returned  in  triumph  from  his  great  victory  over 
the  British,  of  January  8,  1815,  Mr.  Livingston,  by  his  direction, 
wrote  the  General  Orders  which  were  read  at  the  head  of  each 
corps  composing  the  army,  and  which  announced  in  words  glow- 
ing with  love  of  country,  the  signal  success  which,  by  Heaven's 
favor,  had  crowned  the  American  arms. 

February  4th,  in  conjunction  with  Captain  White  and  K.  D. 
Shepherd,  Esq.,  he  was  despatched  to  meet  Admiral  Cochrane  and 
General  Lambert,  to  eft'ect  the  exchange  of  prisoners.  He  was 
present  at  the  surrender  of  Fort  Bowyer,  on  the  12th.  On  the 
13th,  official  information  was  received  of  the  signing  of  the 
treaty  of  Ghent.  He  returned  to  New  Orleans  January  10th. 
Confirmation  of  the  execution  of  the  treaty  was  received  by 
General  Jackson  ]\Iarch  15th,  ensuing.  The  City  of  New  Orleans 
had  been  kept  under  martial  law  during  the  twenty-two  days 
which  elapsed  between  the  return  just  stated  of  Mr.  Livingston, 
and  the  arrival  of  the  official  news  of  the  treat3^  Judge  Hall,  U.  S. 
District  Judge,  having  issued  a  writ  of  habeas  corpus  for  the 
protection  of  Mr.  Louallier,  who  had  been  arrested  by  order  of 
General  Jackson  for  the  publication  of  a  communication  to  a  city 
paper,  adversely  criticising  the  General's  course,  the  latter  had 
arrested  the  Judge  himself,  and  banished  him.  He  now  resumed 
his  seat  on  the  bench,  and  under  Mr.  Livingston's  advice,  General 
Jackson  appeared  and  submitted  himself  to  the  authority  of  the 
Court  and  was  fined.  Hall  M'as  an  upright  Judge,  and.  a  stranger 
to  fear,  with  whom  personal  considerations  had  no  weight. 

At  the  close  of  the  campaign,  before  he  left  New  Orleans,  Gen- 


26 

oral  Jackson  presented  Mr.  lA\'m^Um  with  is  miniature  painted 
on  ivory,  as  a  mark  of  the  sense  he  entertained  of  his  public 
service,  and  as  a  token  of  private  friendship  and  esteem.  The 
picture  is  now  at  Mont<romery  IMace,  the  country  seat  on  the  Hud- 
son, which  Mr.  Livingston  inherited  from  his  sister,  Mrs.  ^lont- 
t;omery.  He  looked  deep  into  the  future,  and  pre.ssed  upon  the 
attention  of  Andrew  J*dckson  its  great  opportunities.  "General," 
.said  .Ml-.  Living:ston,  addressing  him,  "you  must  be  President  of 
the  United  States.    You  are  the  ^Ian  !" 

In  1820.  .Mr.  Livingston  became  a  member  of  the  Legislature 
of  Louisiana,  and  was  made  Chairman  of  the  Committee  of  Ways 
and  Means,  in  the  House  of  Representatives.  Joined  with  Louis 
Moreau  Lislet,  and  Pierre  Derbigny,  he  rendered  fresh  service  to 
the  .jurisprudence  of  the  State,  in  the  preparation  of  the  Civil 
Code  of  1825.  His  part  of  the  work  was  largely  on  the  subject 
of  Conventional  Obligations.  It  has  been  truly  said  of  Judge 
Martin,  that  he  possessed  a  legal  mind  of  the  first  order.  He  had, 
according  to  the  testimony,  studied  Pothier  on  Obligations  until  it 
seemed  to  have  become  part  of  the  te.xture  of  his  brain.  He  pub- 
lished a  translation  of  this  greatest  of  law  books.  ^Ir.  Livingston 
resorted  to  the  same  profound  treatise,  and  thus  enriched  with  the 
labors  of  Pothier  the  most  difficult  and  scientific  portion  of  the 
Civil  Cixle.  If  he  had  done  no  more  for  legal  science,  he  would 
have  realized  the  ambition  of  Sir  William  Jones,  who  declared,  as 
the  result  oF  his  own  marvelous  erudition,  that  he  would  consider 
himself  as  having,  to  a  certain  extent,  discharged  the  debt  which 
every  man  owes  to  his  profession,  if  liis  fondness  for  jurisjiru- 
dence  should  never  produce  any  greater  l)cncfit  to  his  countrymen 
than  ail  introduction  to  the  writin<js  of  Pothiir. 

Mr.  Livingston  now  entered  upon  the  great  work  of  his  life,  the 
preparation  of  his  book  on  Criminal  Jurisprudence.  Ai)pointed 
in  1821,  to  prepare  a  Code  of  Criminal  Law,  he  nuule  an  elaborate 
rcpoi't  at  the  next  session  of  the  T^'gislatm-*'.  The  report  was  at 
once  adopted,  and  he  was  urged  to  prosecute  the  work.  He  pro- 
ceeded under  this  authority,  and  two  years  iu-tcr  was  ready  to 
sul)mil  the  complete  rCsult  of  his  arduous  labors.  The  project 
had  filled  his  thoughts  for  nuuiy  years.  He  first  conceived  it 
up(»n  the  perusal  of  the  works  of  Jeremy  Bentham.   He  had  been 


27 

deeply  impressed  with  the  defects  in  our  system  of  penal  law,  but 
the  study  of  Bentham's  works  gave  method  to  his  ideas,  and  first 
brought  him  to  consider  legislation  as  a  science,  governed  by  cer- 
tain principles  applicable  to  all  branches,  instead  of  an  occasional 
exercise  of  its  powers,  called  forth  by  particular  occasions,  with- 
out relation  to  or  connection  with  each  other.  He  had  given  a 
final  revision  to  his  work,  and  an  engrossed  copy  for  the  printer 
had  been  made,  when  he  retired  for  the  night  for  rest,  but  was 
awakened  by  the  cry  of  fire.  INIrs.  Livingston  was  first  to  ascer- 
tain the  bad  news,  and  to  return  with  it  to  him.  A  spark  from 
the  study  lamp  on  the  table,  where  he  had  been  writing,  had  set 
fire  to  his  papers  and  consumed  them.  "Livingston!"  exclaimed 
his  devoted  wife,  "you  are  a  ruined  man!  Your  code  has  been 
destroyed  by  fire ! "  "  Never  mind,  my  dear, ' '  was  the  ready  an- 
swer of  this  most  amiable  of  men,  "it  shall  rise  like  the  Phoenix 
from  its  ashes ! ' '  The  next  morning  he  sat  down  to  the  heavy 
task  of  re-writing  the  code.  He  Avas  now  an  old  man,  being  sixty 
years  of  age,  but  he  worked  so  effectively,  thai  he  was  able  to 
supply  the  demands  of  the  printer  as  fast  as  they  were  mat'e,  a  ad 
in  two  years  more  had  reproduced  the  work. 

The  aim  of  }t  was  to  bring  under  one  system.  Crime,  Vagrancy, 
Mendicity,  and  all  forms  of  pauperism.  It  provided,  first,  a 
Houj:e  of  Detention  for  misdemeanants  and  for  witnesses;  sec- 
ond, a  penitentiary  for  criminals  above  eighteen  years  who  have 
been  convicted  of  crime ;  third,  a  House  of  Refuge  and  Industry 
for  graduates  of  the  penitentiary  who  were  willing  to  work,  but 
compulsory  work  for  able-bodied  beggars  and  vagrants,  including 
prostitutes ;  fourth,  a  school  of  reform  for  persons  under  eighteen 
who  were  to  be  taught  some  mechanic  art. 

The  work  was  divided  into  a  Code  of  Procedure,  a  Code  ?,2  Evi- 
dence, a  Code  of  Reform  and  Prison  Discipline. 

Capital  punishment  was  to  be  abolished.  Imprisonment  for  life, 
in  a  solitary  cell,  was  substituted  for  it.  Self-examination  was 
invoked  for  discipline.  Labor  was  regarded  as  a  privilege  and*Qot 
a  punishment.  Flogging  in  the  penitentiary  was  prohibited  as  too 
degrading,  and  was  to  be  kept  within  strict  limits  in  the  School  of 
Reform,  Avith  the  hope  of  dispensing  with  it  even  there.  Criminals 
convicted  of  a  penitentiary  offense  were  to  suffer  solitary  confine- 


28 


ment.  Their  lot,  ^enorally  speakintr,  where  they  craved  employ- 
ment, was  to  be  improved— fii-st,  by  better  diet ;  second,  liy  partial 
relief  from  solitmle.  and,  throii^^h  the  instrumentality  of  educa- 
tion, bv  the  visits  and  lessons  of  a  teacher;  third,  bv  permis<iou 
to  read  books  of  instruction ;  fourth,  by  the  jirivile^e  of  r»^ceivin<; 
friends  at  stated  periods ;  after  the  convicts  had  proved  desire  to 
reform,  by  allowing  them  the  privilc«re  of  laboring  in  society ;  and 
finally  by  a  certificate  of  ^ood  conduct,  industiy  and  skill  in  the 
trade  i)ractised  in  prison. 

Mr.  Livinj^ton  had  a  free,  enlig^htcnetl  and  pro^Tcssive  mind. 
His  heart  was  a  temple  of  benevolence.  He  was  at  least 
the  time  of  a  ^feneration  in  advance  of  teachers  and 
reformei-s  in  this  country  on  the  subjects  treated  by  him.  With 
him  the  frreat  object  of  penal  legislation  was  the  prevention  of 
crime.  A  convict  was  a  man.  and  some  jrood  mi»rht  proceed  even 
from  a  convict.  Crime  was  pronounced  to  ])e  the  effect  princi- 
pally of  intemperance,  idleness,  ignorance,  vicious  associations, 
irreligion  and  poverty,  but  not  of  any  defective  oriranization. 
The  laws  which  permit  the  continual  and  unrestrained  exercise  of 
these  causes,  are  themselves  the  source  of  those  excesses  which 
legislators,  to  cover  their  own  inattention  or  indolence  or  ignor- 
ance, impiously  a-cribe  to  the  Sui)reme  being,  (iod.  he  main- 
tained, has  not  created  man  incapal)le  of  receiving  impressions  of 
good.  Himself  of  a  tender  and  loving  disposition,  he  shrank  with 
horror  from  the  infliction  of  merciless  and  brutal  punishments. 
He  proposed  to  abolish  all  constructive  offenses  and  all  dis- 
tinctions between  strict  and  liberal  construction  of  statutes.  He 
forbid  every  departure  from  the  plain  letter  of  the  written  law, 
and  on  the  tiial  of  a  criminal  charged  under  an  ambiguous  act, 
he  iiMpiircd  the  court  to  accpiit  the  accused,  and  report  the  ca-se 
ro  the  liCgislature.  lb-  advocated  the  removal  of  ol)stacles  to 
the  investigatiim  of  truth.  At  that  di.stant  day,  he  was  already  in 
favor  of  iiiliiiittiuL'  tin-  |)arties  to  a  suit  to  testify,  and  was  for 
redhcing  the  ri'course  to  privileges.  l>y  which  thi^  exclusion  of 
testimony  would  be  accomplished. 

The  report  which  ])rec('(lcd  his  work  and  the  scpai'atc  cs.says  in 
which  the  dilVerent  Codes  were  presented,  attracted  wide-spread 
attention,     llis  reputation  "grew  and  mounted"  with  the  publi- 


29 


cation  of  them.  He  became  well  known  in  Europe.  His  style 
had  been  carefully  formed  upon  the  best  models.  It  was  now 
seen  to  be  simple  and  dignified,  persuasive  and  classical.  He 
used  the  principles  of  justice,  good  faith  and  benevolence  in  the 
natural  law,  to  introduce  and  support  positive  regulations  de- 
signed to  protect  society  by  encouraging  the  vicious  and  degraded 
to  show  themselves  capable  of  improvement.  A  system  thus  sus- 
tained, he  urged,  had  never  yet  been  resorted  to.  It  was  impossi- 
ble to  deny  with  success,  that  it  was  at  least  worth  while  to  try 
an  experiment  which  the  lawgiver  pressed,  with  extraordinary 
ability,  and  with  the  fervor  and  eloquence  of  sincere  conviction. 
It  was  out  of  the  question  to  treat  him  as  a  mere  visionary,  or  to 
misunderrstand  what  his  view  really  was,  because  he  derived  it 
from  the  great  universal  law  of  human  nature— that  law  on  which 
Cicero  has  bestowed  his  lofty  eulogium :  Non  erit  alia  lex  Bomae, 
alia  Atkenis,  alia  nunc,  alia  posthac;  sed  et  omnes  gentes,  e;  onini 
tempore,  una  lex,  et  sempiterna  et  immortalis,  coniinebit.  ■ 

The  Code  was  translated  into  admirable  French  by  Jules 
D'Avezac,  President  of  the  first  college  established  in  New  Or- 
leans, and  was  in  this  way  made  immediately  available  in  France. 
It  was  also  published  in  German.  The  French  version  was  edited 
with  copious  notes  by  Taillandier,  a  distinguished  counsellor  of 
the  Court  of  Cassation,  and  was  laid  before  the  Council  of  Super- 
intendents of  Prison  Discipline  in  the  City  of  Paris.  Victor  Hugo 
wrote  to  the  author :  "You  will  be  remembered  among  the  men  ol 
this  age  who  have  deserved  most  and  best  of  mankind."  Ville- 
main  declared  that  the  proposed  system  of  penal  law  was  "a 
work  without  example  from  the  hands  of  any  one  man."  The 
Code  w^as  also  reprinted  in  England  by  Doctor  Southwood 
Smith.  Jeremy  Bentham  proposed  that  a  measure  should  be  in- 
troduced in  Parliament  to  print  the  whole  Avork  for  the  use  of 
the  English  Nation.  The  Westminster  Review  for  January,  1825, 
concluded  an  article  on  the  London  edition^  referring  to  Mr.  Liv- 
ingston, the  writer  said : 

"In  England,  the  eyes  of  its  most  enlightened  philosophers, 
"of  its  best  statesmen,  and  of  its  most  devoted  philanthropists 
"will  be  fixed  upon  him,  and  in  his  own  country  his  name  will 
"be  held  in  lasting  remembrance,  venerated  and  loved.     He  is 


30 


"one  of  those  extraonlinarv  individuals  wlumi  nature  has  pftecl 
"with  lilt'  jxnvor.  and  wlioni  circumstances  have  aft'orded  the 
"opportunity,  of  sh('(Ulinfr  true  ^lor>'  and  conferrinfr  lastinpr  hap- 
"piness  on  his  country,  and  of  identifying:  his  own  name  with  the 
"freest  and  most  nohle  and  most  perfect  institutions." 

Elaine,  Professor  of  Civil  Law  at  Camhridfre,  author  of  a  pro- 
found treatise,  entitled  "Ancient  Law,"  pronounced  him  "the 
first  lejral  crenius  of  modern  times."  Harvard  Collejre  proceeded 
to  confer  on  him  the  decree  of  Doctor  of  Laws.  The  P^mperor  of 
Russia  and  the  Kin<r  of  Sweden  wrote  him  autoprraph  letters  of 
contrratulation.  Brazil  made  his  Code  the  basis  of  her  jurispru- 
dence of  crimes.  The  King:  of  the  Netherlands  sent  him  a  jrold 
medal  havin^:  upon  it  an  inscription  in  his  honor.  TheCovernment 
of  Guatemala  translated  one  of  his  Codes,  that  of  Reform  and 
Prison  Discipline,  and  adopted  it  word  for  word.  He  received  from 
Marshall.  Kent,  Madison  and  Story  expressions  of  admiration  for 
his  labors  as  a  criminal  jurist  and  law  reformer.  Jefferson,  him- 
self a  reformer  of  the  law.  whose  past  difference  with  Living:ston 
made  his  praise  alt  Ihe  more  valuable,  wrote  to  him  to  say  that  his 
work  "would  certainly  arranjre  his  name  amonfr  the  sapes  of 
antiquity."  The  Institute  of  France  did  him  the  verv  rare  honor  of 
choosing:  him  a  foreisrn  associate.  When,  towards  the  close  of  his 
career,  he  visited  Heidelberg:  and  met  Professor  ^Mittermaier.  an 
enlifjlitened  author  and  advocate  of  law  reform  with  whom  ]\Ir. 
Liviufrstoii  had  corresponded,-  the  l^rofessor  folded  Inm  in  his 
arms.  At  (Jeneva,  the  Count  de  Sellon  showed  him  a  monmnent 
erected  by  himself  to  the  inviolability  of  the  life  of  man,  having^ 
tht'  form  of  a  temple,  and  on  which  twelve  great  names  were 
inscribed.  'I'hese  included  Fenelon,  Bacon  and  Wilberforce.  One 
of  the  inscriptions  was  as  follows: 

A 

LIVING.'^TOX. 
IL    DKMANDA 

L 'abolition  DK  I>A 

peine  de  mokt  a 

l'ameriqie. 

Althouf^h,  as  Kent  testifies,  Livingston  has  done  more  in  giving 


31 

precision,  speciiRcation,  accuracy,  and  moderation  to  the  system 
of  crimes  and  punishment  than  any  other  legislator  of  his  age, 
and  his  name  has  descended  to  posterity  with  distinguished  honor, 
the  Legislature  of  Louisiana  failed  to  give  its  sanction  to  his 
work.  I  do  not  hesitate  to  submit  in  the  presence  of  the  Bar 
Association,  that  it  would  have  been  far  more  creditable  to  the 
State  to  have  adopted  it.  Perhaps  a  different  result  would  have 
been  reached,  if  Mr.  Livingston  had  remained  in  Louisiana  to 
support  his  work;  but  he  Mas  unanimously  elected  in  1822  a 
Representative  in  Congress,  when  travel  was  difficult,  and  his 
duties  at  Washington  detained  him  a  great  deal  from  his  South- 
ern home  and  constituency.  Beginning  with  the  session  of  1823 
he  was  now  to  serve  in  the  House  six  years  without  interruption. 
After  the  lapse  of  nearly  a  quarter  of  a  century  he  returned  to 
Congressional  life,  at  a  time  just  as  interesting  as  that  when  he 
retired  at  the  clo«e  of  his  first  service  of  six  years  in  the  House 
from  the  State  of  New  Tork.      ,  ^ ,  2_.  j,  ^  ^  -.v^x^i^  ^<^l<y^  W 

The  period  of  American  history^  onding  with  the  Battle  of  New 
Orleans  was  one  of  financial  depression.  It  was  one  marked  by 
the  establishment  of  a  National  Bank.  It  was  the  period  of  Pro- 
tection to  American  Industry,  and  that  of  the  development  of 
Internal  Improvements  in  the  ITnited  States.  It  was  also  marked 
by  the  application  of  the  Treating-lMaking  power,  and  by  mem- 
orable debates  regarding  the  interpretation  of  this  delicate  and 
important  power :  finallv,  it  was  the  period  of  the  pernicious  an(L 

destructive  doctrmes  of  Nullification  and  Secession,  and  of  the 

A. 

anti-slavery  agitation,  and  once  more  a  time  of  public  distress.* 

Mr.  Livingston's  opinions  as  a  Republican,  so  far  from  having 
yielded,  had,  with  time,  acquired  fresh  energy.  He  was,  however, 
far  in  advance  of  Madison,  Monroe,  the  Randolphs  and  Macons, 
and  other  Republican  statesmen  regarding  the  doctrine  of  Inter- 
nal Improvements,  which  the  Democratic  party  showed  itself  so 
slow  to  adopt.  Upon  his  reappearance  in  the  House  of  Repre- 
sentatives he  made  an  elaborate  speech  to  maintain  the  proposi- 
tion that  the  Government  of  the  United  States  has  the  constitu- 
tional right  to  make  such  roads  and  canals  as  are  necessary  and 
proper  for  the  transportation  of  the  mail,  for  giving  facility  to 


*Bentou  's  Thirty  Years. 


32 

militan'  operations,  and  to  commercial  intercourse  between  the 
States.  Jefferson,  who  jrreeted  with  sincere  prat uhit ions  his 
return  to  public  life,  expressinor  the  strongest  eontidcnce  in  his 
powers  and  j)urposes.  and  his  cordial  esteem  for  him,  did  not 
conceal  his  dissent  from  the  doctrine  of  the  speech. 

In  182()  Mr.  Livinjrston  paid  his  debt  to  the  (Jovemment.  The 
adnjinistration  in  power  was  one  to  which  he  was  in  political 
opposition,  but  it  accepted  his  propositions  and  received  in  satis- 
faction of  the  debt  certain  property  which  he  had  succeeded  in 
disembarrassinp:  from  litipration.  Not  lono:  afterwards  the  Gov- 
ernment realized  from  the  sale  of  the  property  in  question,  some 
$6000  more  than  tlie  debt,  principal  and  intere-st,  amounted  to. 

In  January,  1826,  he  made  a  speech  upon  a  bill  Itcfore  the 
House  to  amend  the  judicial  system  of  the  United  States  by  cre- 
atin«r  new  circuits,  and  demanded  for  Louisiana,  for  reasons  of 
public  policy,  but  especially  because  of  her  admission  into  the 
Union  on  a  footinjr  of  etpiality  with  the  oriirinal  States,  the  ben- 
efit of  a  circuit  .iudjje  as  allowed  by  the  i)endin«;  act  to  other 
States.  He  introduced  into  the  House  and  succeeded  in  carrying 
a  bill  for  the  erection  of  lipht-houses,  beacons,  buoys  and  tloatinj; 
lights  alon«r  the  track  of  navip:ation  between  New  York  and  New 
Orleans,  and  secured  the  erection  in  the  Citv  of  New  Orleans  of 
a  federal  buiklinfr.  He  exhibited  deep  interest  in  the  construc- 
tion of  the  trreat  national  road,  aTid  in  the  scheme  for  a  ship  canal 
across  the  Isthmus  of  Panama. 

General  Jackson  took  his  seat  as  Senator  from  the  State  of 
Tennes.see  at  the  same  time  that  Mr.  Livin»rston  re-entered  the 
House.  He  renewed  his  cordial  intercourse  with  Jackson.  They 
had  corresi>onded  with  each  other  for  years.  He  supported  liim 
for  President  in  the  campaitrn  of  1S24.  where  the  latter  failed, 
and  the  eh'ction  p'ttin^'  into  the  IIoum'.  Mr.  .\dams  was  chosen. 
His  course  was  not  taken  from  any  dislike  to  ."Mr.  Adams,  for  he 
felt  none;  on  the  contrary,  he  had  a  hiizh  opinion  of  his  talents 
and  inte^^rity,  but  from  a  decided  preference  for  the  other  candi- 
date, whose  <|ualities  he  thou«rht  better  fitted  him  for  the  place, 
lie  claimed  that  (Jeneral  Jackson  in  his  conduct  of  the  defence 
of  New  Orleans,  had  developed  the  resourc«*s  of  a  mind  e(|ual  to 
any  task  which  the  service  of  his  country  could  recjuire.   Energy 


33 

combined  with  prudence ;  courage  to  face  not  only  dangers  in  the 
field,  but  to  incur  the  responsibility  of  every  measure,  however 
unpopular,  if  necessary^  for  the  defence  of  the  country;  stern 
integrity ;  the  most  disinterested  contempt  of  private  emolument ; 
courtesy  of  manner  that  won  the  hearts  of  all  who  approached 
him,  and  that  commanded  the  admiration  even  of  the  enemy,  in 
his  epistolary  intercourse ;  and,  above  all,  a  respectful  submission 
to  the  laws,  even  when  they  were  so  administered  as  to  impose  a 
heavy  penalty  for  acts  which  the  preservation  of  those  laws,  in  his 
opinion,  made  necessary. 

To  the  very  great  regret  of  General  Jackson,  Mr.  Livingston, 
after  serving  three  terms  in  the  House  of  Representatives,  was 
defeated  in  his  candidacy  at  New  Orleans  for  re-election.  But 
the  Legislature  of  Louisiana,  at  its  next  session,  proceeded  to 
elect  him  Senator  of  the  United  States,  and  he  began  his  term 
in  the  Senate  with  the  inauguration  of  Jackson,  March  4th,  1829, 
as  President  of  the  United  States. 

The  President  had  from  the  beginning  desired  to  employ  Mr. 
Livingston  in  the  business  of  the  French  spoliation  claims,  then 
in  a  critical  stage  with  France,  but  he  found  himself  unable  to 
leave  the  Senate.  He  participated  in  the  celebrated  debate  on 
Foote's  resolutions,  in  the  course  of  which  Daniel  Webster  deliv- 
ered the  most  admired  address  to  be  found  in  American  Congres- 
sional history.  The  speech  of  Mr.  Livingston  contains,  in  addi- 
tion to  a  very  carefully  prepared  and  instructive  enquiry  intc 
the  nature  of  the  Government  of  the  United  States,  many  pass- 
ages which  glow  with  love  of  country,  and  which  give  expression 
to  the  feelings  of  the  speaker  as  a  patriot,  in  a  style  of  excellence 
deserving  of  admiration  for  its  purity  and  beauty.  The  speech 
denied  the  existence  of  Nullification  and  Secession  as  constitu- 
tional remedies,  and  defended  the  Virginia  resolutions  of  1798 
against  the  charge  of  having  approved  those  political  heresies. 
These  views  of  IMr.  Livingston  conform  to  the  interpretation 
placed  upon  the  resolutions  by  their  illustrious  author,  Mr.  Mad- 
ison. ]Mr.  Livingston  voted  with  true  independence  to  override 
President  Jackson's  Ai'eto  of  the  Maysville  Road  Bill,  and  the 
Washington  Turnpike  Bill.  March  3,  1831,  he  obtained  leave  to 
bring  in  a  bill,  the  object  of  which  was  the  adaptation  of  his 


34 


system  of  ponal  law  to  tlie  wants  of  the  Federal  (jovenunent.  He 
asked  attention  t(»  two  of  its  featnres— the  provisions  for  defining 
and  punishin«r.  by  positive  hiw,  offenees  a^'ainst  the  hiw  of 
nations,  anil  the  total  abolition  of  the  death  jienalty.  The  work 
was  printed  for  further  consideration,  but  at  the  next  session  ^Ir. 
Livin'Tston  had  eeased  to  be  a  Senator,  and  the  subject  was  not 
taken  up  again. 

On  the  dissolution  of  Jackson's  first  Cabinet  he  was  appointed 
Secretary  of  State,  and  having  been  unanimously  confirmed,  ^la.v 
24,  1881,  entered  upon  the  duties  of  the  office  and  continued  for 
the  period  of  sonic  two  years  in  the  discharge  of  them. 
It  devolved  upon  him  as  Secretary  of  State  to  prepare  the 
proclamation  of  President  Jackson  of  December  10,  1832.  on  the 
occasion  of  the  adoption  by  a  convention  of  the  people  of  South 
Carolina  of  the  ordinance  of  Nullification.  The  question 
of  the  American  system,  but  especially  that  of  a  high  i)r()tec- 
tive  taritT',  having  been  put  at  issue  in  the  Presidential  elec- 
tion of  1832,  the  decision  was  against  the  system.  South  Car- 
olina had  held  aloof  from  the  election  and  thrown  away  her  vote 
on  citizens  who  were  not  candidates.  The  result  of  the  election, 
instead  of  rpiieting  her  apprehensions,  as  ought  to  have  been  the 
case,  seemed  to  intlame  them,  and  on  the  24th  of  November,  1832, 
a  fortnight  afterwards,  she  adopted  her  ordinance  of  Nullifica- 
tion, the  (tbject  of  Nvhich  was  to  nullify  certain  acts  of  the  Con- 
ffress  of  the  United  States,  puri)orting  to  be  laws  levying  duties 
and  imports  on  ihe  importation  <tf  foreign  connnodities.  The 
ordiiuince  placed  the  State  in  an  attitude  of  open  resist 
ance  to  the  laws  of  the  United  States,  to  take  effect  on  the  l.st 
of  February  ensuing;  and  if,  meanwhile,  any  attempt  should  be 
made  in  any  way  to  enforce  the  law  (being  "an  Act  in  alteration 
of  the  several  acts  imposing  duties  on  im])orts,  approved  on  the 
nineteenth  (h\y  of  Ma.v,  one  thousand  eight  hiuidrcd  ami  twenty- 
eight,  and  also  "an  Act  to  alter  and  amend  the  several  acts  im- 
posing duties  on  imports,"  approved  on  the  f(un*tcenth  day  of 
July,  one  thousand  eight  hundred  and  thii-ty-two.)  the  fact  of 
such  attempt  was  to  terminate  the  continuance  of  South  Carolina 
in  the  Union  — to  absolve  her  froni  all  coniKM-tion  with  the  Federal 
Ciovernment,  ami  lo  i-stablish  lier  as  a  separate  government. 


35 


The  proclamation  of  the  President  examined  the  provisions  of 
the  ordinance  of  Nullification,  and  announced  his  attitude  against 
the  Xullifiers.  Here,  it  was  pointed  out,  is  a  law  of  the  United 
States,  not  even  pretended  to  be  unconstitutional,  repealed  by 
the  authority  of  a  small  majority  of  the  voters  of  a  single  State. 
Here  is  a  provision  of  the  Constitution  which  is  solemnly  abro- 
gated by  the  same  authortiy.  The  ordinance  grounds  on  such 
reasonings  and  expositions,  the  right  to  annul  the  laws  of  which  it 
complains,  but  contains  a  threat  to  secede  from  the  Union  if  any 
attempt  is  made  to  enforce  them.  The  right  to  secede  is  deduced 
from  the  nature  of  the  Constitution,  which,  as  asserted,  being  a 
compact  by  sovereigns,  they  who  made  it  having  reserved  their 
sovereignty,  can  break  it  when  in  their  opinion  it  has  been  de- 
parted from  by  other  States. 

The  proclamation  insisted  upon  the  radical  error  involved  in 
such  a  position.  It  took  the  ground  that  the  people  of  the  United 
States  formed  the  Constitution,  acting  through  the  State  Legisla- 
tures in  making  the  compact,  to  meet  and  discuss  its  provisions, 
and  acting  in  separate  conventions  when  they  ratified  those  pro- 
visions; but  the  terms  used  in  its  construction  show  it  to  be  a 
Government  in  which  the  people  of  all  the  States  collectively  are 
represented.  The  Constitution  operates  directly  on  the  citizen. 
It  is  intended  to  be  everlasting.  It  does  not  contain  the  flagrant 
absurdity  of  giving  a  power  to  make  laws  and  at  the  same  time 
another  to  resist  them.  The  Constitution  forms  a  Government,  not 
a  league,  and  whether  it  be  formed  by  compact  between  the  States, 
•or  in  any  other  manner,  its  character  is  the  same.  It  is  a  Govern- 
ment in  which  all  the  people  are  represented,  which  operates 
directly  on  the  people  individually,  not  upon  the  States — they 
retain  all  the  power  they  did  not  grant.  But  each  State  having 
expressly  parted  with  so  many  powers  as  to  constitute,  jointly  with 
the  other  States,  a  single  nation,  cannot  from  that  period  possess 
any  right  to  secede,  because  such  secession  does  not  break  a 
league,  but  destroys  the  unity  of  a  nation ;  and  any  injury  to 
that  unity  is  not  only  a  breach  which  would  result  from  the  con- 
travention of  a  compact,  but  is  an  offence  against  the  whole 
Union.  To  say  that  any  State  may  at  pleasure  secede  from  the 
Union  is  to  say  that  the  United  States  are  not  a  nation ;   because 


36 


it  would  be  a  f?olocisni  to  contend  that  any  part  of  a  nation  might 
dissolve  its  connection  with  the  other  parts,  to  their  injury  or 
ruin,  without  committing:  any  otfence.  Secession,  like  any  other 
revolutionary  act.  may  be  morally  justified  by  the  extremity  of 
oppression,  but  to  call  it  a  constitutional  right  is  confounding  the 
m»'aning  of  terms. 

The  proclamation  {)ointed  out.  conceding  the  laws  comi)lained 
of  to  have  been  unwisely  passed,  that  they  by  no  means  justified  a 
recourse  to  revolution.  It  dwelt  upon  the  blessings  of  the  Union 
and  the  glorious  part  of  South  Carolina  in  its  formation  — the 
dangers  which  must  follow  any  attempt  at  dissolution.  It  ap- 
pealed to  the  people  of  South  Carolina  in  the  affecting  language 
of  a  father — it  invoked  the  memories  of  their  Revolutionary 
ancestors  in  order  to  influence  them  to  desi.st  from  the  course  on 
which  tliey  had  entered — it  called  on  them  as  they  prized  the 
peace  of  their  country,  the  lives  of  its  best  citizens,  and  their  own 
fair  fame,  to  retrac*^  their  steps— to  snatch  from  the  archives  of 
their  State  the  disorganizing  edict  of  its  convention  — to  bid  its 
members  to  reassemble,  and  promulgate  the  decided  expressions 
of  the  will  of  the  people  of  South  Carolina  to  remain  in  the  path 
whicli  alone  could  conduct  them  to  safety,  honor  and  prosperity. 

The  President,  pending  the  preparation  of  the  proclamation, 
wrote  to  Mr.  Livingston  to  submit  to  him  a  few  lines  for  consider- 
ation. He  a.sked  the  Secretary  of  State  to  give  the  prodamaticm 
his  best  flight  of  eloquence,  to  strike  to  the  heart  and  speak  to  the 
feelings  of  his  deluded  fellow  countrymen.  He  then  added  :  "The 
"Union  UMist  ))<■  preserved  without  bloo<l.  if  ibis  be  possible; 
"but  it  must  be  preserved  at  all  hazards  and  at  any  i»rice." 
Horatio  Seymonr.  who  was  twice  Governor  of  the  State  of  New 
York,  and  who  received  the  nomination  of  tin*  national  Demo- 
cratif  party  for  the  Presidency  in  lS(i8,  published  towards  the 
close  of  his  life  an  address  in  which  lie  cited  a  European  publi- 
cist as  having  de<'lared.  at  a  time  when  he  Wits  ignorant  of  the 
fact  that  the  Proclamation  against  the  Nullifiers  and  the  Heport 
to  the  Legislatiire  of  Louisiaiui  on  Criminal  Law,  in  favor  of 
abolishing  the  penalty  of  death,  were  written  by  the  same  author, 
that  they  were  tlie  productions  of  finest  excellence  ever  seen  by 
him  from  an  American  statesman. 


37 


The  proclamation  of  Jackson  was  received  with  defiance  by 
the  nullifiers.  The  State  of  South  Carolina  adopted  measures  to 
arm  herself.  I\Ir.  Calhoun  resigned  the  Vice-Presidency  and 
entered  the  Senate  to  do  battle  for  Nullification.  Henry  Clay 
took  +he  field  as  the  champion  of  compromise.  The  President 
called  for  strong  measures,  and  the  force  bill  was  passed.  The 
collection  of  the  revenue  was  transferred  to  a  ship-of-war,  and 
the  frigate  Natchez,  in  order  to  do  this  duty,  dropped  anchor  in 
Charleston  Harbor.  Mr.  Clay  procured  simultaneously  with  the 
passage  of  the  force  bill  a  measure  for  the  reduction  of  the  tariff 
until  1842,  when  it  was  to  stand  at  20  per  cent,  reduction  with  a 
large  free  list.  Clay  contended  that  the  Force  Bill  and  the  Bill 
of  Peace  should  go  together  for  the  peace  of  the  country :  the 
first  to  vindicate  the  authority  and  supremacy  of  the  Union,  the 
second  to  offer  that  which,  accepted  in  the  proper  spirit,  would 
supersede  employment  of  force.  South  Carolina  proceeded  to 
repeal  her  Nullification  ordinance.  The  country  welcomed  the 
bill  of  Mr.  Clay  with  great  favor.  It  won  for  him  a  second  time 
the  title  of  Pacificator. 

Senator  Benton  says  that  this  famous  compromise  mooted  in 
the  Senate  by  Mr.  Clay  and  Mr.  Calhoun  as  a  problem  between 
themselves,  belongs  to  neither,  but  to  John  M.  Clayton,  Senator 
from  Delaware,  under  the  instrumentality  of  General  Jackson. 
The  effort  to  bring  about  an  understanding  between  Clay  and 
Calhoun  on  the  tariff  had  failed.  In  this  crisis  of  our  country 's 
history  Daniel  Webster,  the  great  Senator  from  Massachusetts, 
was  opposed  to  compromise,  and  came  without  hesitation  to  the 
support  of  the  President.  General  Jackson  would  admit  of  no 
further  delay.  He  said  he  would  have  no  further  delay.  He 
would  execute  the  laws.  This  was  communicated  to  Mr.  Letcher, 
in  order  that  it  should  reach  Mr.  Calhoun.  Senator  Josiah  S. 
Johnson,  of  Louisiana,  went  to  the  room  of  Mr.  Calhoun  at  night 
and  informed  him  that  General  Jackson  was  determined  to  take 
a  decided  course  at  once,  which  was  understood  to  signify  an 
arrest  and  trial  for  high  treason.  Mr.  Calhoun  was  evidently 
disturbed. 

A  committee  having  been  appointed,  it  was  resolved  to  pass 
Mr.  Clay's  bill,  provided  the  Southern  Senators,  including  the 


38 


nnllifiers.  should  vote  for  the  amondinents  to  ho  proposed  by 
Mr.  Clay,  but  esppoially  the  boiup  valuation  feature.  Rut  the 
amendments  were  voted  down  in  eonnnittee.  Senator  Clayton 
then  determined  to  have  the  same  amendments  offered  in  the 
Senate,  and  notified  ^Ir.  Clay  and  ^Ir.  Calhoun  that  unless  the 
amendments  were  adopted,  and  Ihat  by  every  Southern  vote, 
everv  nullifier  inelusively.  that  tlie  bill  should  be  defeated.  The 
reason,  as  Benton  explains,  for  making  the  nullification  vote  a 
sine  qua  non  was  to  eut  off  the  Senators  who  voted  for  the  meas- 
ure from  pleading  unconstitutionality  after  they  were  passed; 
and  to  make  the  author.s  of  disturbance  and  armed  resistance 
parties  upon  the  record  to  the  proeeedinprs,  which  were  to  pacify 
tliem.  As  Senator  Clayton  was  inexorable,  after  much  consulta- 
tion, they  aprreed  to  all  the  amendments,  except  that  revoltinp:  one 
of  home  valuation.  At  last  they  offered  to  support  and  to  pass  the 
bill,  but  without  Mr.  Calhoun's  vote.  But  Mr.  Clayton  declined. 
One  day  oidy  was  left  before  final  adjourrmient,  and  they  sur- 
rendered. ]\Ir.  Calhoun,  as  well  as  the  others,  voted  for  the 
amendments  and  afterwards  for  the  whole  bill.  Their  assent  was 
in  this  way  given  to  that  protective  legislation  against  which  they 
were  then  raising  troops  in  South  Carolina,  but  Mr.  Calhoun  had 
saved  himvelf  from  the  peril  in  which  he  stood  from  the  inflexible 
purpose  of  the  President.  Time,  instead  of  diminishing  the' 
slalure  of  Andrew  Jackson,  has  only  added  to  it.  In  the  Presi- 
dential contest  of  1828  he  had  overthrown  the  high  tariff  of  that 
time.  The  influence  of  his  victory  facilitated  the  modification  of 
the  tariff.  His  unconqueral)le  resolution  enforced  submission  to 
the  Covernraent  of  the  United  States.  In  action  how  great  he 
was! 

Oil  .May  20th.  IS.'^?:^.  iiinnediately  upon  resigning  tlu^  office  of 
Sccretarv  of  Stat(\  in  ii<-"ordan('e  with  the  desire  of  the  President 
that  he  should  undertake  the  conduct  of  the  claim  of  the  United 
States  for  indemnity  for  the  French  spoliations.  Mr.  Livingston 
was  appointed  Minister  to  France.  Tin-  President  addressed  him 
a  letter  in  which  he  adverted  in  terms  of  praisi*  both  to  his  ser- 
vices in  the  campai<_Mi  at  New  Orleans,  as  well  as  to  his  manage- 
ment of  the  Department  of  State.  .August  14tb.  18.18,  he  em 
harked  on  the  74-gun  ship  Delaware  at  New  York.    A  salute  was 


39 


fired  on  his  coming  on  board,  and  the  noble  vessel  spread  her  sails 
and  stood  out  to  sea.*  On  September  12th  he  arrived  at  C|ier- 
bourg.  The  claims  of  the  United  States,  which  Mr.  Livingston 
went  abroad  to  recover,  had  their  origin  in  the  British  orders  in 
council  and  the  Berlin  and  Milan  decrees  of  Napoleon.  A.  D. 
1804  Great  Britain  declared  the  French  coast  under  block- 
ade from  Ostend  to  the  Seine,  and  in  1806  the  blockade  was 
extended  from  the  Elbe  to  Brest.  Napoleon  answered  by  the 
Berlin  decree  of  November  21,  1806,  establishing  the  continental 
system  and  designed  to  put  a  stop  to  trade  between  Great  Britain 
and  the  continent  of  Europe.  Thereupon  the  British  orders  ir? 
council  of  January  7  and  November  11,  1807,  were  issued,  de- 
claring a  blockade  of  all  places  and  ports  belonging  to  France 
and  her  allies  from  which  the  British  flag  was  excluded.  Na- 
poleon retaliated  by  the  Milan  decree,  declaring  every  vessel 
sailing  from  England  or  her  colonies,  or  paying  taxes  to  her  or 
submitting  to  search  by  England,  should  be  lawful  pri/e.  These 
decrees  were  the  instruments  by  which  the  commerce  of  neutrals 
and  especially  the  maritime  commerce  of  the  United  States  was 
destroyed. 

Bj^  the  treaty  of  July  4,  1831,  negotiated  by  ]\Ir.  Rives  with 
Louis  Philip,  the  indebtedness  of  France  to  the  United  States 
had  been  fixed  at  25,000,000  francs,  payable,  with  interest,  in  six 
yearly  installments.  This  action  required  the  aspent  of  the 
Chamber  of  Deputies  for  the  appropriation.  The  Secretary  of 
the  Treasury,  Mr.  McLane,  drew  a  bill  for  the  first  installment, 
the  bank  negotiating  the  bill  transferred  it  to  a  third  person  who 
presented  it,  and  the  bill  having  been  declined,  on  the  ground 
that  there  was  no  appropriation  to  meet  it,  was  protested  and 
returned.  This  was  the  immediate  occasion  for  the  appointment 
of  Mr.  Livingston.  He  urged  at  once  a  special  convocation 
of  the  Chambers  in  order  to  pass  the  legislation  required, 
but  the  King  showed  reluctance  to  resort  to  such  an 
expedient,  and  delayed  action  to  find  a  more  favorable 
opportunity.  At  the  same  time  friendly  representations 
were  conveyed  to  Mr.  Livingston,  who  was  assured  thai 
.the     necessary     measure     would     be     presented     at     the     ap- 

*  Journal  of  E.  Livingston, 


40 

proachinp  reprular  session  and  would  doubtless  be  successful 
The  ministry  had  not  ventured  to  ask  the  Chamber  of  Deputies 
for  an  appropriation,  up  to  the  time  of  the  dishonor  of  the  draft 
of  Mr.  MeLane.  An  application  was  made  a  few  weeks  after  that 
event,  but  it  got  no  further  than  a  reference  to  a  committee.  At 
a  later  time  in  the  same  year,  another  l)ill  was  introduced  with  a 
like  result.  It  was  not  until  six  months  after  Mr.  Livingston's 
arrival  that  tinal  action  was  had,  and  then,  unhappily,  the 
Chaml)er  refused  by  a  ma,iority  of  eight  to  make  the  appropria- 
tion. The  King  dispatched  a  coverette  with  instructions  to  his 
Minister  at  Washinprton  that  the  new  Chamber  should  be  called 
together  soon  after  the  election;  that  the  pro  jet  dc  loi  should  be 
laid  before  them  -.  that  all  constitutional  means  should  be  exerted 
to  carry  the  apj)ropriation,  and  that  the  result  would  be  made 
known  early  enough  to  enable  the  President  to  communicate  it  to 
Congress  at  its  annual  session.* 

The  King,  however,  did  not  submit  the  nuitter  to  the  new 
Chamber  as  he  had  suggested.  The  President  in  his  annual 
message  in  1834  made  a  recital  of  the  whole  business,  and  Mr. 
Livingston  having  reported  a  eontidential  intimation  he  had 
received  from  the  King  of  F^rance,  that  an  earnest  passage  in  the 
message  might  secure  payment,  the  President  actually  j^roceeded 
to  reconnnend  reprisals.*  The  French  exclaimed  against  this  as  a 
threat  which  madr  it  impossible  for  France  to  i)My  without  dis- 
honor, and  it  liccaiiie  necessary  to  do  something  to  keep  open 
friendly  negotiations.  This  was  accomplished  by  reference  to  the 
committee  on  foreign  relations  in  the  SiMiate.  of  which  Mr.  Clay 
was  chairnum.  He  insisted  that  while  the  President  and  the  whole 
people  of  the  United  States  .stood  together  and  the  indemnity  was 
due.  it  behooved  our  Ciovernment  not  to  anticipate  breach  by 
France  of  her  solemn  engagements  and  to  treat  her  with  confi- 
dence'. It  was  unanimously  resolved  in  conseijuence.  by  the  Sen- 
ate. .January  14.  188').  that  any  legislation  at  that  time  was  inex- 
pedient. The  Ciovernment  of  England  inter\'(>ned  to  tender  its 
offices,  as  a  mediator,  but  France  n-tccatcij  from  her  original 
<lemand  for  .satisfactory  cx[)ianations  of  ilir  President's  message 
of  1884.  by  saying  that  the  President's  annual  message  of  1835 
(which  wa.s  addressed   to  the   American  Congress  only,  and  in 

*  Hunt's  Life  of  Livingstou. 


41 


which  he  said  he  had  never  used  any  menace)  was  a  sufficient  dis- 
claimer. The  money  was  paid,  and  the  incident  was  closed  with 
increase  to  the  popularity  of  Jackson. 

But  payment  was  not  made  to  Edward  Livingston.  Whei~« 
the  message  of  President  Jackson  reached  France  it  produced 
great  excitement.  The  Comte  de  Rigny  informed  Mr.  Living- 
ston that  His  Majesty  had  considered  it  due  to  his  own  dignity 
not  to  have  his  Minister  any  longer  in  Washington,  and  that  the 
communication  was  made  in  order  that  ]\Ir.  Livingston  might  take 

» 

those  measures  which  might  seem  to  be  natural  consequences,  and 
that  the  passports  which  he  might  desire  were  at  his  disposal. 

Mr.  Living-ton  wrote  immediately  in  reply,  that  if  the  note  of 
the  Comte  de  Rigny  was  intended  as  an  intimation  of  the  course 
which,  in  the  opinion  of  His  jMajesty's  Government,  he  ouglit  co 
pursue,  he  could  take  no  directions  and  follow  no  suggestions  but 
those  of  his  own  Government,  which  had  sent  him  there  to  repre- 
sent it ;  but  if  it  was  intended  as  a  direction  that  he  should  quit 
the  French  territory  he  would  comply  with  it  forthwith,  leaving 
the  responiiibility  where  it  ought  to  belong.  In  fulfilling 
his  promise  to  i-eply  at  length  to  the  Comte  de  Rigny, 
he  said  it  was  his  purpose  to  convey  to  the  latter  infor- 
mation which  seems  to  have  been  wanted  by  His  Majesty's  ]\rin- 
i^ter,  when  on  a  late  occasion  he  presented  a  law  to  the  Chamber 
of  Deputies.  It  was  proper,  therefore,  to  state,  that  although  thi; 
military  title  of  General  was  gloriously  acquired  b}'^  the  present 
head  of  the  American  Government,  he  is  not,  in  official  language, 
designated  as  General  Jackson,  but  as  "the  President  of  the 
United  States, ' '  and  that  communications  were  to  be  made  to  him 
in  that  character. 

The  issue  which  the  correspondence  had  developed  was  stated 
by  him  with  admirable  temper  in  the  following  manner : 

' '  I  have  no  mission.  Sir,  to  offer  any  modification  of  the  Presi- 
" dent's  communication;  and  I  beg  that  what  I  have  said  may 
"be  considered  with  the  reserve  that  I  do  not  acknowledge  any 
"right  to  demand,  or  any  obligation  to  give,  any  explanations  of 
"a  document  of  that  nature.  But  the  relations  which  previously 
"existed  between  the  two  countries,  a  desire  that  no  unnecessary 
* '  misunderstanding  should  interrupt  them,  and  the  tenor  of  your 
"Excellency's  letter  (evidently  written  under  excited  feeling) 


42 


"all  convince  me  that  it  was  not  incompatible  ^^•ith  self-respect, 
"and  the  dijjrnity  of  my  country  to  enter  into  the  details  I  have 
"done.  The  same  reasons  induce  me  to  add.  that  the  idea,  erro- 
"neously  entertained,  that  an  injurious  menace  is  contained  in 
"the  message  has  prevented  your  p]xeellency  from  g:iving  a 
"proper  attention  to  its  lanfrua<:e.  A  cooler  examination  will 
"show  that,  althoujih  the  President  was  obliged,  as  I  have  demon- 
"strated,  to  state  to  Congress  the  engagements  which  had  been 
"made,  and  that  in  his  opinion  they  had  not  been  comj)lied  with, 
"yet,  in  a  communication,  not  addressed  to  His  ^lajasty's  Gov- 
"ernment,  not  a  disrespectful  term  is  employed,  or  a  phra.se  that 
"his  own  sense  of  propriety,  as  well  as  the  regard  which  one 
"nation  owes  to  another,  would  induce  him  to  disavow." 

The  Chamber  of  Deputies  soon  determined  to  appropriate  the 
money,  and  passed  a  bill  to  do  so  on  the  18th  of  April,  Init  with  a 
proviso  that  the  payment  should  not  be  made  until  the  French 
Government  should  have  received  satisfactory  explanation  of  the 
terms  used  by  the  President  in  his  annual  message 
]\Ir.  Living.ston's  instructions  not  having  provided  for  .such  a 
contingency,  in  dependence  on  his  own  judgment  he  denuinded  his 
passports,  leaving  in  Paris  the  Secretary  of  the  Legation,  ^Ir. 
Barton,  as  charge  d'atTaires.  Tn  doing  so,  he  addressed  a  commu- 
nication to  th(^  Comte  de  Kigncy,  whicli  he  concluded  by  observ- 
ing: 

"If  the  pi-incipie  (  foi-  wiiich  Franci'  had  contended)  is  correct 
"every  connnunication  which  the  President  nuikes  in  relation  t() 
our  foreign  affairs,  either  ti>  the  Congress  or  to  the  public,  ought 
"in  prudence  to  be  previously  submitted  to  tlio-^e  Ministers,  in 
"order  to  avoid  disputes  juid  troublesome  and  hiniiiliating  ex- 
"[>lanations.  If  the  ])rinciple  be  .submitted  to,  neither  dignity 
"nor  independence  is  left  to  the  nation.  To  submit  even  to  a 
"discreet  exercise  of  such  a  i)rivilege  would  be  troublesome  and 
"degrading,  and  the  inevitable  abuse  of  it  could  not  be  borne.  It 
"must  therefore  l)e  resisted  at  the  threshold,  and  its  entrance  be 
"forbidden  into  the  sanctiiary  of  domestic  con>ultations.  But 
"whatever  may  be  the  ])rinciple  of  other  governments,  those  of 
"the  United  States  are  fixed:  the  right  will  never  be  acknowl- 
" edged,  and  any  attempt  to  enforce  it  will  be  repelled  by  the 
"undivided  energy  of  the  nation." 


43 


He  returned  to  the  United  States  in  the  frigate  Constitution. 
His  conduct  of  the  delicate  and  important  business  which  had 
been  entrusted  to  his  direction  in  France  received  the  cordial 
approval  not  only  of  the  President  and  of  his  administration,  but 
of  his  fellow-citizens  throughout  the  country.  Crowds  of  people 
gretted  him  on  his  landing  in  New  York  and  followed  him  to  his 
dwelling.  He  held  a  public  reception  the  next  day,  on  the  request 
of  the  Common  Council,  in  the  Governor's  Room  at  the  City 
Hall.    A  public  dinner  was  given  in  his  honor. 

He  withdrew  now  to  ]\Iontgomery  Place,  his  beautiful  country- 
seat  on  the  Hudson.  He  took  delight  in  nature.  Freed  from  the 
cares  of  office,  he  enjoyed  the  real  happiness  he  had  always  found 
in  home  and  the  domestic  relations.  With  gathering  years  his 
heart  warmed  more  and  more  to  his  native  country.  He  made  but 
one  address  in  public  after  his  retirement.  He  appeared  as  coun- 
sel for  the  municipal  authorities  in  the 'case  of  the  City  of  Ne\' 
Orleans  vs.  the  United  States,  10  Peters  691.  He  was  associated 
with  Daniel  Webster.  On  the  other  side  Benjamin  F.  Butler, 
Attorney  General  of  the  United  States,  appeared.  Mr.  Butler 
having  in  the  argument  cited  with  great  respect  Mr.  Livingston's 
answer  to  Mr.  Jefferson  in  the  Batture  case,  the  former  took  occa- 
sion to  observe: 

"The  reference  to  the  pamphlet  from  which  the  argument  has 
been  drawn,  the  flattering  terms  in  which  the  Attorney  General 
has  been  pleased  to  speak  of  it,  and  the  possibility  that  in  look- 
ing at  it  the  court  may  recur  to  other  parts  than  those  immedi- 
ately relating  to  the  question  before  them,  oblige  me  to  ask  their 
indulgence  for  a  single  observation,  irrelevant  it  is  true  to  the 
case,  but  which  I  am  happy  to  have  an  opportunity  of  making. 
That  pamphlet  was  written  under  circumstances  in  which  the 
author  thought  and  still  thinks  he  had  suffered  grievous  wrongs 
— wrongs  which  he  still  thinks  justified  the  warmth  of  language 
in  which  some  parts  of  his  argument  are  couched,  but  which  his 
respect  for  the  public  and  private  character  of  his  opponent 
always  obliged  him  to  regret  tl^at  he  had  been  forced  to  use.  He 
is  happy,  however,  to  say  that  at  a  subsequent  period  the 
friendly  intercourse  with  which,  prior  to  that  breach,  he  had 
been  honored,  was  renewed ;  that  the  offended  party  forgot  the 
injury,  and  that  the  other  performed  the  more  difficult  task  (if 


44 


"the  maxim  of  a  ct'k'brated  FreiU'li  author  is  true)  of  forj^iving 
"the  man  upon  ^vh()m  he  had  intlieted  it.  Tlie  court,  1  hope,  will 
"excuse  this  personal  digression-,  hut  I  could  not  avoid  using  this 
"occasion  of  making  known  that  I  have  been  spared  the  lasting 
"regret  of  reflecting  that  Jefferson  had  descended  to  the  grave 
"with  a  feeling  of  ill  will  to  me." 

His  brief  visit  to  Washington  ended,  he  returned  to  Monlgom 
ery  Place  where,  after  a  very  short  illness  and  with  his  family  and 
friends  around  him,  he  died  on  ^londay,  ]\Iay  23.  IS'Mi. 

His  remains  were  laid  to  rest  with  tho-e  of  his  kindred  in  the 
family  vault  of  the  Livingstons,  constructed  after  the  manner  of 
things  long  since  gone  by,  in  the  hill-side  at  Clermont  on  the 
Hudson,  formerly  the  lower  manor  of  that  name.  Some  j^ears  ago 
a  dear  lady  who  had  many  reasons  to  reverence  his  memory, 
piously  removed  his  dust  to  the  toiuh  of  his  wife,  Louise  Living- 
ston, and  of  their  daughter  and  only  chiM,  Mrs.  Rarton,  under- 
neath the  Methodist  Chuivli.  in  llic  village  of  Rhinebeck,  Duchess 
County,  New  York,  where  the  land  (Ui  which  the  church  edifice  is 
built  was  the  gift  of  Janet  Livingston,  his  sister,  widow  of  the 
heroic  Montgomery. 

The  statue,  in  bronze,  of  Robert  R.  Livingston  has  been  erected 
by  the  State  of  New  York  in  Statuary  Hall  in  the  Capitol  at 
Washington.  .Th<^  history  1  have  given  here,  imperfect  as  I 
am  conscious  it  i-;  (notwithstanding  the  very  free  use  I 
have  made  of  the  materials  at  my  disposal),  justifies,  I  trust, 
the  suggestion,  tliat  when  Louisiana  conies  to  contribute  to  Statu- 
ary Hall  the  historic  figures  which  fall  to  the  share  of  the  State,  it 
will  discharge  a  j)roud  and  honorable  duty  to  itself,  by  erecting, 
where  it  may  be  associated  forever  with  Ihaf  of  his  brother,  n 
statue  to  Edward  Livingston.  Representative- and  Senator  in 
Congress,  Secretary  of  State  under  the  Ciovernment  of  the  I'nited 
States,  Envoy  Extraordinary  and  ^linister  Plenipotentiary  to 
Franr(>,  Scholar  and  Oi-ator,  Patriol  and  Statesman.  Jurist  and 
Philosopher,  he  adorned  the  annals  of  hi<  country.  Elected  as 
an  illustrious  man,  to  be  metidicr  of  the  Institute  of  France  in 
honor  of  his  labors  for  the  Reform  of  tlie  Law  and  of  his  work  on 
Criminal  Jurisprudence,  he  was  nund)cred  among  the  Benefactors 
of  Mankind. 


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